Water Services (Amendment) Bill 2011: Committee Stage (Resumed)


Amendments Nos. 17 to 20, inclusive, are out of order.

On a point of order, I would like to review the finding in light of the fact that "local authority", which we had inserted in the amendment, came into the discussion so often last night that we feel it is relevant to the situation.

The amendment was ruled out of order. Amendment No. 21 is also ruled out of order.

We would like to have it noted that we do not agree with the ruling.

Amendments Nos. 17 to 21, inclusive, not moved.

Amendment No. 23 is related to amendment No. 22 and they will be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 22:

In page 6, to delete lines 28 to 31.

The amendments relate to sections 70B(9)(g) and (h). We wish to delete those two paragraphs because, for example, 70B(9)(g) provides details of any prosecutions for an offence under this Part brought by the water services authority concerned. No offences should be introduced for septic tanks. We appreciate that pollution is an issue across the country, as was acknowledged last night. We respect the fact that it needs to be targeted, in particular fly-tipping and such practices that are dealt with under the 2007 Act. It is going down the wrong road to criminalise people for septic tank infringements. A person with a septic tank could be prosecuted for reasons given by an inspector. People can also be prosecuted under the Act for failing to register a septic tank.

The Minister may outline details of any prosecutions. I assume that relates to the prosecutions referred to in the Bill and that there are no other hidden prosecutions that could emerge in future under regulation. Will the Minister confirm that there is no intention to introduce further prosecutions by way of regulation as an addition to the Act? The prosecutions that are set out under the legislation would affect owners of private dwelling houses who have domestic septic tank treatment systems. They will, in effect, be prosecuted for the non-compliances which are listed in the Bill.

Will the Minister clarify the position on individuals found to be in breach of the Bill which the Government is attempting to introduce? If the local authority or the agency were to take a prosecution against that person to court would the local authority or the agency compel the applicant to carry out the work in the event the applicant is not in a position financially to carry out the work? Will the Minister clarify whether, under this legislation, the local authority or the agency would go onto the person's property with excavation machinery, carry out the work concerned and then seek reimbursement for the cost of that work from the individual concerned? I want clarification from the Minister as to whether that is the case under this legislation because it is important there would be absolute clarity in that regard.

There are hidden elements of the Bill in certain sections. Under section 4(9)(h) refers to “such other information as may be determined by the Agency from time to time”. What is that other information? We do not agree with those words but what does “such other information as may be determined by the agency from time to time mean?

This amendment relates to prosecutions.

I thought we were discussing amendments Nos. 22 and 23 together.

Apologies, yes.

Amendment No. 23 refers to sweeping powers that would be given to the agency to alter the criteria and require the applicant and the householder to provide new information. Can the Minister clarify for the record the details of that information? If we and the Minister's colleagues on the Government side are expected to vote through those three lines in this section I am sure he will be happy to provide clarification as to the exact nature of what is meant by "such other information as may be determined by the Agency from time to time". Does that mean the Environmental Protection Agency has the power to make the decision on the information that will be required? For example, does it mean that it does not have to come back to Members of the Oireachtas? Of course it does. I am not questioning the agency. The Environmental Protection Agency is a reputable and responsible organisation which is carrying out its functions in accordance with guidelines from Europe, and we can extend the debate on that as the evening progresses.

The Minister might also clarify the details of any prosecutions. I ask him to outline to the House all the prosecutions covered under section 4(9)(g) and answer my initial question as to whether any of those prosecutions could result, either following on from a prosecution having been taken or prior to a prosecution being taken, in the local authority, the water services authority or the agency going into the person’s dwelling house without the person’s authority, carrying out the prescribed work under the legislation and then endeavouring to recoup the money from that through the courts or directly from the individual. Will he clarify whether that is the case?

My colleague, Deputy Brian Ó Domhnaill, has covered many of our objections to this element of the Bill. The Bill itself is objectionable. In his water services programme as part of the capital review the Minister has allocated €1.6 billion of taxpayers' money towards improving water and wastewater treatment, which is welcome. I put it to the Minister's colleague, Deputy Howlin, and I stated on Second Stage also, that instead of attempting to prosecute people who have built dwellings, and paid significant development levies to their local authorities in not all but many instances for services that are not provided, as well as the registration fee, the inspection fee and any remediation works——

There is no inspection fee.

There is one free inspection and anything that happens after that——

There is no inspection fee. That is the Cavan model.

We will come to that.

We are ready for the Senator.


I refer to the remediation work that will be required. That is a grave concern. There is no indication that regarding any of the remediation works that would be required the cost could be borne fully by the home owner but people in my area in rural north County Dublin will be charged for having their septic tank. They will not be charged for inspections, as the Minister stated, but they will be charged for all the remediation work while at the same time the Department, under the capital programme, has a massive scheme that will cost anything between €2.3 billion and €2.7 billion where he has allowed for costs——

Does the Senator think we should pull it?

The Minister should pull it——

The Senator should talk to the Minister, Deputy Brendan Howlin, about it.

——and I hope my constituency colleague, the deputy leader of the Minister's party, the Minister for Health, Deputy Reilly, has asked him to pull it. Has he done that? I doubt it.

The Senator should talk to the Minister, Deputy Brendan Howlin, about that.

I did talk to the Minister, Deputy Howlin——

The Senator has it sorted.

——and I got a better answer from him than I have been able to get from the Minister, Deputy Reilly, but that is another day's work. I have not got any answers from the Minister, Deputy Reilly. If the Minister's Department proceeds with its plans, and I refer specifically to north County Dublin, hundreds of home owners will be charged to have a septic tank while on their doorstep they will have a massive sewerage treatment plant that will serve all of Dublin, north Wicklow, Kildare, east Meath and parts of Louth. They will not be able even to connect to the sewerage mains. These people have already paid development levies.

The two amendments are specific.

I want to tell the Minister about this because what he is describing in this section is how these people will be prosecuted. I am concerned about my neighbours who could very well be prosecuted under this legislation if this section is allowed stand and their quality of life diminished. I am telling the Minister where he could save a great deal of money, time and effort. He would be able to take on board many of the suggestions Senator Brian Ó Domhnaill has brought to his attention in the past few days. He would be able to fund a grant aid system for remediation works if his Department did not proceed with——

We are not talking about grants or grant aid. We are talking about prosecutions and information.

Okay. If the Government is asking us——

The Senator can raise those issues in the debate on the section.

No. This section relates to prosecutions.

The amendment relates to prosecutions and information.

Yes, the amendment is on prosecutions.

On a point of order, this is not about prosecutions. It is about recording prosecutions.

That is not a point of order.

It is a point of order.

That is not a point of order. Senator O'Brien, on the two amendments being taken together.

I am trying to ascertain information from the Minister. The Government wants to pass this Bill which is setting in law a series of prosecutions that, as Senator Ó Domhnaill said also, refers to other information as the agency may determine from time to time. We do not know the parameters or what the prosecutions will be in that regard and we are expected to pass this legislation that will criminalise people living in rural areas throughout Ireland, including in my own area of north Dublin. I am trying to be helpful to the Minister. I am telling him he would not have to charge a registration fee if his Department managed its budget properly and if it did not proceed with crazy plans such as the plan in my area of north County Dublin to install a massive treatment plant in that area.

The Senator is straying from the amendments.

I am not straying from the amendments. I am asking the Minister——

The section is wide.

It is not that wide, Senator, that you can discuss sewerage plants in Dublin.

It appears to me to be wide.

The section refers to "such other information". That is fairly——

I am just trying to be helpful to the Minister. He might comment on it with regard to——

I will respond——

I look forward to it.

——but what I have to say will not satisfy the Senator.

I refer to amendment No. 22 and the prosecutions. I accept that inspectors must have powers. We must ensure that the public good is protected. I have no difficulty with that at all. The public good is paramount in these circumstances. Will the Minister clarify whether the Bill has been proofed legally? We are talking about prosecutions and somebody may be prosecuted. There are private property rights in the State and people have constitutional rights. This Bill may be subject to a court challenge if somebody is prosecuted. Has the Minister sought the advice of the Attorney General? If so, could he make it available to us?

If somebody is prosecuted, what will be the nature of the offence? Will one have a criminal record? If somebody has a criminal record, it will prevent him from travelling, for example. There are many implications that need to be to teased out to which the Minister should respond.

Subsection (9)(h) of the proposed Part to be inserted in the existing legislation states: “such other information as may be determined by the Agency from time to time”. I support the call by Senator Ó Domhnaill for the Minister to define clearly the kind of information he is talking about in this respect. The statement seems to be sweeping and could be open to misinterpretation. Could the Minister give us an example of what information the agency may seek that would not be included under subsections (9)(a) to (9)(g), inclusive?

On amendment No. 22, perhaps we could debate section 70M(1), which also pertains to fines.

We are on amendments Nos. 22 and 23, as agreed by the House.

We will be making the same points in respect of the proposed section 70M(1)——

We are dealing with amendments Nos. 22 and 23.

With regard to the fines issue, when the Minister is drawing up the regulations, perhaps he might insert what I propose, in respect of class A fines. Senator O'Brien, I believe, asked whether a person in a holiday home who did not really receive notification would be fined. What could the Minister do on foot of non-delivery of notification, for example, such that one would not be prosecuted automatically?

Last night I referred to the fines that can be imposed under the by-laws in operation in County Cavan. It is stated a person who contravenes the by-laws is guilty of an offence under section 40 of the Local Government Act 1994 and is liable on summary conviction or a fine of up to €1,270. This fine will be updated under the Fines Act 2010, becoming a class C fine. Once that Act is commenced, the fine, upon summary conviction, will be up to €2,500. Why is it necessary to double the fine under the legislation?

When the Minister is giving his response to colleagues, I would like to afford him the opportunity to correct the record of the House. Given that I have the height of respect for him and know he would not knowingly mislead the House, I will give him the benefit of the doubt and contend that his officials might have been misinformed.

I have given the Senator some latitude. We are discussing amendments Nos. 22 and 23. We discussed the Cavan model yesterday.

We did, but it is important at all times that the record of the House be corrected if there has been an untruth or misleading information put on it. I am attempting to afford the Minister an opportunity to address this matter this evening.

What am I to correct?

I refer to the Minister's reply to one of my contributions, in which I pointed out that Cavan County Council was exempt from the European Court of Justice's finding and in which I outlined the advantages of the by-laws in operation in County Cavan and the fact that there was a register in existence. The Department's officials informed the Minister that there was no such register. There is a voluntary register in operation.

I am glad the Senator clarified that.

There is no fee charged for registering a septic tank but there is a fee of €100 for the assessment. I am glad to clarify that for the Minister and I hope he will accept it and correct his contribution to the House. Cavan County Council has in operation a panel of independent assessors. The minimum qualification is that one be an engineer or architect. The council is currently advertising more such posts.

How, then, does the Senator explain Senator Ó Domhnaill's point on local authority staff involvement?

There are independent assessors and the maximum fee they charge is €100.

The de-sludging takes place every 18 months for a standard house. The fee for this is between €80 and €100. That is my clear understanding having spoken to staff in the council. To date, the rate of compliance with the by-laws is 33%, which is very high for a voluntary code.

The Senator is straying from the amendments.

It is important that this be corrected because the Minister, to whom I give the benefit of the doubt because he is a decent and honourable man for whom I have great time — I mean that and am not being cynical——

Will the Senator return to the amendments?

I am affording the Minister the opportunity to correct the record because his figures have been used by colleagues to counter the contributions of other colleagues, including Senator Ó Domhnaill. I am asking the Minister to clarify the circumstances in this regard.

Some Senators on the other side of the House, including Senator Keane, complimented Cavan County Council on bringing in by-laws in 2004. Other Senators, however——

I ask and advise Senator Wilson not to draw any other Senators into the contribution he is making because he is straying from the amendments before the House.

I thank the Cathaoirleach for his latitude. I just want to clarify the circumstances regarding Cavan County Council. The council was exempt from the judgment. The point I was making last night was that if the system is not broken, it should not be fixed. We were asking that Cavan County Council be exempt from the new legislation because its model is in compliance and is working very well. The European Court of Justice said so. Perhaps the Minister will clarify the situation.

The Minister will be allowed to speak to it but I assure Senator Wilson that there will be no other Senator doing so. I allowed Senator Wilson some latitude. Unless the subject is covered by an amendment or is referred to in the relevant section, it may not be discussed.

It was important that the Cathaoirleach allowed Senator Wilson to correct the record appropriately. I am sure the Minister will acknowledge that.

I have a couple of questions for the Minister on amendments Nos. 22 and 23. Subparagraph (g) of the proposed new section states: “details of any prosecutions for an offence under this Part brought by the water services authority concerned”. Senator Ó Domhnaill’s amendment suggests that this be excluded. I am concerned that the register contains certain information that will be in the system for the longer term. I made this point last night. Does registration attach to one’s property? If I sell my property in Sheep’s Head or Bantry and move from west Cork to Mayo, will the registration continue to pertain to that property? My reason for making this point is that it would be unfair were this criminal record to attach to the person rather than the property. This is the reason it is so important that heed be taken of Senator Ó Domhnaill’s amendment.

Moreover, section 4(9)(h), the deletion of which the Senator also seeks, provides for “such other information as may be determined by the Agency from time to time”, the agency being the Environmental Protection Agency, EPA. As this country is burdened with regulations and so on, perhaps a more simple register should be kept. Obviously, when anyone sells a property from A to B to C, one must do one’s searches. Any solicitor or person purchasing on behalf of a purchaser must insist on clear title because it clearly would be negligent of anyone to close a sale in the knowledge that a notice of inspection was pending or that a certificate of registration existed. While I do not expect the Minister to have the answer to hand, he might consider before Report Stage the implications of having a register that clearly would attach to the property. It could be something that the local authority, in the event of a serious breach, should register as a burden on the property in order that it is plain to be seen. Buying a house entails checking all these records, performing all these searches and so forth and this proposal constitutes an additional piece of work that is coming down the track. Once this legislation is passed, were I purchasing a 20 or 25 year old house anywhere in the country, I would first wish to ensure there had been no inspection. Obviously, a register will be kept because everyone will be obliged to register.

In supporting Senator Ó Domhnaill's call to have sections 4(9)(g) and 4(9)(h) deleted, I suggest the Minister might consider a more simplified form of registration that would attach to the property and not the individual. While I may be completely wrong in this regard, this should not warrant a criminal record. I consider this to be a minor offence unless there was a clear breach of the law. However, if one has had a septic tank for 40 years but finds out it is not working in 2011, 2012 or 2013, that should be a matter for a civil action rather than being a criminal offence. This is the reason the register should be much simpler than is being proposed. It should attach to the property and, if necessary, should be registered by the local authority. In my experience, the local authorities have the capacity to do this. I refer to what happens in my neck of the woods as soon as one applies for planning permission and tries to make the case that it pertains to a family need in which the person or couple have no other house. If the local authority has any suspicion that one may have had a property previously, its planning section conducts a search in the Land Registry to find out whether Denis O’Donovan or Diarmuid Wilson ever owned a property previously. In this instance, it should attach to the property and be registered as a burden. This is a serious issue and in three, five or ten years’ time, it will become part of the transaction of conveyancing in the purchase and selling of a house. I merely ask that this should be simpliciter and be attached to the property, not to the individual.

The EPA guidelines regarding re-registration were discussed at length last night. I am prepared to take on board some of the suggestions made about how re-registration should be done and whether it is necessary at all. However, because a universal inspection system is not envisaged, it is necessary to know the level of interaction those who are not inspected are having with the system to ascertain whether improvements have been carried out and what is the state of play in respect of the people who wish to register. This is the reason I wish to put in place a re-registration process.

Senator Ó Domhnaill mentioned criminalising people. While memory loss is a problem from which the Senator does not suffer, he does suffer from hypocrisy. The Water Services Act 2007, which was introduced by his party to this House and which was approved by Fianna Fáil and the Green Party in government, provides for a penalty of up to €15 million and five years in prison. This is for being in breach of the Water Services Act and not the Waste Management Acts.

It does not have penalties if one does not register a septic tank.

The Minister to continue, without interruption.

In this legislation, I propose to impose a fine of up to €5,000 and no imprisonment. Who is criminalising who? The provisions about which the Senator speaks already are contained in the primary legislation and if he has not read it, he should. Fianna Fáil is responsible for introducing this criminal legislation, which constitutes an outrageous attack on ordinary people. However, it now expects me to take on board its bona fides to the effect it is worried about the problem, when I am only imposing a fraction of what that party imposed. Fianna Fáil cannot have it every way and Senator Ó Domhnaill should stop digging. He should not be hypocritical about this as the principal Act as introduced by Fianna Fáil sets out €15 million in fines.

It is not a level playing field.

Senator O'Donovan knows I am correct because he has a legal background and is able to read the principal Act.

The Minister is aware it applies in a different scenario. The Minister is being disingenuous.

In that case, why did Fianna Fáil not table an amendment about it?

We did. Fianna Fáil does not want any fines to be included in this Bill.

Why did Fianna Fáil not table an amendment to the principal Act?

The problem is the Minister is rejecting the amendment.

Fianna Fáil did not do it.

Fianna Fáil tabled two amendments in this regard.

The Minister to continue, without interruption.

No further offences are to be brought in by regulation and that can only be done in the context of primary legislation. However, the Act of 2007 introduced by Senator Ó Domhnaill's party already includes the power to carry out environmental work and seek reimbursement for that work from the owner. As this power already is included in the legislation, the Senator is asking me to eliminate something that was brought in by his own party. It is in the principal Act and the Senator should read it.

As discussed, the additional information that might be sought relates to technical details of improvements to the system and I already have covered this matter. As for the notification timescale spotted by Senator Keane for holiday homes, this issue was raised last night and I am prepared to take this on board. There are practical reasons that must be applied in respect of giving people a chance to be notified.

On the question of registration in general, the reason one is obliged to bring in registration for people in general, including those in County Cavan, is that under the law one cannot have voluntary registration. Cavan County Council brought in its regulations in 2004 and fair play to it. It was dealing with an extremely difficult situation and because those regulations were in situ, Cavan was exempt from the European Court of Justice judgment. However, the latest information I have from County Cavan is that of approximately 11,000 septic tanks, 3,500 have complied.

In other words, only one third are complying and two thirds are not.

That is disingenuous.

The Minister's statement that two thirds are not in compliance is putting——

The Minister to continue, without interruption.

As I stated, the fines are considerably lower than those already contained in the principal Act introduced by Fianna Fáil, namely, the Water Services Act 2007 but I have dealt with this. Moreover, the Government has received the advice of the Attorney General to the effect that everything is in order with regard to access to property. The environment is also important under environmental law and the common good is often dictated by the level of the environment. As I noted, the court's ruling exempts County Cavan in the light of legislation, in the form of by-laws, beingin situ. However, it did not comment on the implementation of the by-laws. Consequently, the absence of a register and of a proper risk assessment programme based on a full legal register leaves Cavan in a non-compliant position with the ruling. This is the reason County Cavan must be included. In the context of the interests of public health and the environment, it also comes under the legislation.

Senator O'Brien raised many issues. He may not be aware of this point but development levies are discounted by the local authority if connection to either drinking water supply or the public sewerage network is not possible. Rural people are looked after by having an exemption and a reduction.

I do not think so. I have spoken to people in the Minister's own——

No, if water and sewerage services are supplied by the local authority, the cost is €49.91 per sq. m but it is €38.74 per sq. m when a connection is not possible.

It is a significant charge for no services.

There is a big reduction for people in rural areas who are unable to connect. Moreover, I am sure the Senator voted for that as a county councillor.

As for people who wish to connect into existing public group sewage schemes, I stated I was considering the support currently provided in respect of water and sewage on a group basis. It may be possible to help people connect to existing schemes. We mentioned that last night when Senator Darragh O'Brien was not here.

No, I wanted to clarify the arrangements in Cavan. The by-laws in Cavan required all persons served by an on-site system to have their systems assessed every seven years by a competent, independent, private contractor, not a local authority staff member as Senator Wilson spoke at length about last night. Any faults identified have to be provided to the council within seven days — that is a short time — as well as a programme of repair. Systems have to be desludged at prescribed intervals and the sludge must be disposed of appropriately. No financial assistance is provided to households by the council for any of these requirements. The average cost of assessment, as confirmed by Cavan County Council to the Department, is €200.

No, that is not correct.

The average cost of €200 is paid for by the owners.

No, that is not the case.

Senator Wilson told me last week there was no charge.

That is not correct.

The Minister to continue, without interruption.

The Minister misled the House last night by claiming an inspection of a tank for Cavan County Council cost €200.

That is not correct. I have requested the Minister to withdraw that and put the record straight.

Senator Wilson, please allow the Minister to continue, without interruption.

The Minister is now suggesting an average cost and so on. The maximum cost of an inspection in Cavan is €100.

I thought there was no cost.

I am calling on the Minister to correct the record of the House. It was he who used the figure of €200. I did not use any figures.

Senator Wilson is out of order.

I also pointed out a register was in place. The Minister says there is not. I am calling on him to clarify the record of the House.

The Minister will continue, without interruption.

I did not mislead the House. If I were to stay in the Chamber for the next week, I am sure we would be spending most of the time correcting much of the misinformation from the other side of the House. I stand over what I said.

The competent persons——

A Chathaoirligh, let it be noted that the Minister——

It is on the record.

——insists on misleading the House.

How is he misleading the House?

Will Senator Wilson allow the Minister without interruption?

I note Fianna Fáil is in favour of charging for desludging and assessments of any particular septic tank problems in Cavan. It wants to extend this nationally, as an amendment from last night proposed.

That is an outrageous remark.

That is a lie and is misleading the House. The Minister is misleading the House.

The Minister to continue, without interruption.

The Minister should read our amendments. He is misleading the House.

Senator Ó Domhnaill should allow the Minister to continue, without interruption.

I know Members opposite are upset about their proposal.

We are upset about the Minister misleading the House.

Fianna Fáil also wants to implement——

Nobody will misrepresent the county from which I come. This House should not be misled by the Minister with the information he supplied last night.

Please allow the Minister to continue.

We have to continue because the truth needs to be told.

The truth is that the maximum cost for an assessment in Cavan is €100. There is no fee for registration.

Will Senator Wilson allow the Minister to continue?

I never claimed there was a fee for registration.

The Minister said it.

Senator Wilson made that claim. I never said it.


I never mentioned registration last night. The average cost of an assessment was €200.

The Minister said there was no registration in Cavan.

The average cost of an assessment in Cavan is €200, which is paid directly by the owner. Senator Wilson is charging €200 to deal with the problem which we are trying to address.

The maximum cost of an assessment is €100.

The Minister to continue, without interruption.

I am not letting this matter rest. The Minister is misleading the House.

Senator Wilson must find some other way of raising this matter.

The Minister is misrepresenting Cavan County Council. It is an outrage that I cannot tolerate.

Senator Wilson, this is not part of this amendment. Will you allow the Minister to continue?

A Chathaoirligh, will you ask the Minister to clarify what hesaid?

Resume your seat, Senator.

I will have no option but to adjourn the House.

I am anxious the legislation goes through as smoothly as possible. However——

I do not doubt that Senator.

The Senator is against the legislation.

——I am not going to have the county I come from misrepresented by the Minister or whoever is supplying his information.

Is the Minister finished?

I rest my case.

I call Senator Ó Clochartaigh. I do not want to hear anymore about the Cavan model.


We are on amendments Nos. 22 and 23, on which I have given much latitude so far.

We also do not want to hear anymore of what the Minister said last night about the Cavan model.

We should not even mention the word "Cavan" because it will only upset Senator Wilson.

I have called Senator Ó Clochartaigh.

We kept our counsel on Cavan last night and we intend to do so again tonight.

We have an issue about the legal matter of a person's rights to protect themselves on their land in light of the Pádraig Nally case several years ago.

Is the Senator going to shoot the assessors?

That is an outrageous comment.

What has the Nally case got to do with this legislation?

I am sure one of the Minister's party colleagues can inform him about this. There are legal implications arising from the Nally case regarding people's rights on their land.

It is all taken into account.

Senator Ó Clochartaigh to continue, without interruption. That applies to the Minister as well.

What legal advice was sought from the Attorney General on this matter? Have any flaws in the 2007 Water Services Act been rectified in this Bill? Many people are unhappy with this legislation and have said they will oppose assessors coming on to their land. We must ensure the legislation is watertight.

Sinn Féin has an issue with failure to adhere to these regulations leading to a criminal offence. In the fishing industry, regulations set by EU directives were introduced for the landing of catches. Now, for example, a prosecution for an improperly marked catch logbook means a criminal offence for the fisherman in question. Some Aran Islands fishermen have received criminal records because of such administrative misdemeanours. In the case of the Water Services (Amendment) Bill, a person with a faulty septic tank may be charged with a criminal offence and suffer the same fate as the Aran Islands fishermen. This is unacceptable to Sinn Féin.

We have had the example of the builders who did not construct the Priory Hall apartments to the proper specifications. Many other houses have been built across the country in the past 20 years. Not everyone will have checked their septic tank and will have depended in good faith on the builder or engineer to inform them it is up the required standard. If a fault were found with a septic tank in such circumstances, to whom does the criminal offence pertain? Is it the owner of the septic tank or the person who put in a faulty tank? It could also happen in the case of a house sold on.

The contractor will be known when one signs off on it.

Many contractors have gone out of business.

It can be very hard to follow a contractor if a fault turns up. My reading is that it is the owners' responsibility.

Why are we spending five minutes on this?

We are spending five minutes on it because a person could get a criminal record for a faulty septic tank that was installed by someone else unbeknown to them. That is a serious point. That is why Sinn Féin is arguing such cases should not be a criminal offence.

When it happens in the Senator's area, he will know all about it.

Senator O'Donovan made a valid point about prosecutions following the people as opposed to the property. Will the Minister enlighten us as to what advice has been given on this? Can a prosecution be attached to a property or is it attached to a person? Are there data protection issues as to people having access to information on the register? These are questions that need to be teased out and I would welcome the Minister's opinion on them.

Perhaps if the Minister was to give clarification on the questions and someone else on this side of the House could repeat verbatim what the Minister says, it might be of use to the Opposition.

We are on amendments Nos. 22 and 23.

The Minister has stated that the idea of criminalising people, which we are not doing, is already prescribed in the Water Services Act 2007. Everything they say is prescribed in it. If they took the time to read it, they would see this and we would have saved ourselves 15 minutes of meaningless talk.

Senator Gilroy should read the first prosecution and then tell us if it is meaningless.

Do we need to repeal every piece of legislation, including consumer legislation, to appease the Opposition? Clearly, property rights——


On amendments Nos. 22 and 23, please.

I am just trying to be helpful. We are wasting so much time here on unnecessary and irrelevant detail. It seems to be nit-picking, repeating and repetitive.

That is scrutinising legislation.

All the points made are covered in the 2007 Water Services Act. If Opposition Members took the time to prepare themselves before they came in here making arguments——

It is very serious. It should be scrutinised.

——it would save us all a great deal of trouble. If we took a five minute recess, we could point out the relevant sections of the Water Services Act 2007.

Senator Gilroy is wrong.

I will confine myself to the section. In fairness, the comparison with the 2007 Act is like comparing fish to meat. It is a totally different scenario. The story of the Act is nothing to do with septic tanks. It is nothing to do with this issue.

It is important to come back to the point I was making on which I have not got clarification. First, the Act should describe the owner. Is the owner a lessee, a temporary tenant, the registered owner, the occupant or, maybe in this case, NAMA, the bank or whoever?

The other point is that there is a perception being given by the Minister, not to mislead intentionally, that registration is compulsory but inspection may or may not fall over a period of time. A prudent purchaser of a house — I refer to what Senator Ó Domhnaill is trying to delete in the two amendments — or his agent or solicitor will want to know if the septic tank on the property he or she is buying complies with this new law. He or she will check with the local authority and verify that, for example, whether Senator Ó Domhnaill's house and septic tank is registered. In a case where it does not comply, the first thing that will have to be done is the local authority will initiate an inspection, either directly or indirectly. That is my concern. Whether we like it and while it is fine to say there is registration, there is a knock-on effect. That is why I say this about the registration and certificate of compliance which will be sought in the closing of any sale of any property. It will inevitably follow because property keeps changing hands, even if there might not be much movement at present, but the market will turn again. What I am concerned about in this regard is that the simple act of paying €50 for registration, in itself, comes close to compulsory inspection because I certainly would not close on a sale unless I had a compliance certificate from a competent engineer or architect verifying that an inspection, not merely registration, had taken place. That is my worry. It will cause delays and it will also initiate that process.

That is why this type of registration should attach to the property, not to the individual. It would be simple to incorporate this in the Act. Senator Ó Domhnaill wishes it to be deleted and I support that view. If the Minister is pursuing the other line, the registration, apart from the local authority, would probably have to go on the title of the property.

I rise to give the frequency of de-sludging per square foot in a county I am not allowed to mention and the number of people——

De-sludging has nothing to do with these two amendments.

It can come in——

I will let Senator Keane contribute on the section.

——under the next amendment in other regulations. I was going to give it but as we are not allowed mention Cavan, I will sit down.

To expand on the good point Senator Ó Clochartaigh made about who exactly is liable, the Minister stated it is the individual. As Senator Ó Clochartaigh stated, somebody could in good faith have paid a contractor to install a septic tank system, that system may be faulty, an inspection is carried out and then, at the end of the process, there could well be a prosecution. It goes back to the earlier point I made about the legal aspect of this. That individual, if he or she was prosecuted on foot of a company either putting in a faulty system or not installing the system properly, could challenge the Act then and also bring the contractor who installed the system to court. That is the problem.

Why then are we complicating it even more?

We are complicating it. We are opening up all sorts of legal cases which should not happen. The point is why the owner should be responsible.

Somebody has to be.

No. We are talking about him or her being criminally responsible for somebody who, in installing the system, may have created problems. Where that person is liable, I do not see that as fair.

I was so energised after the debate last night when we finished here that I was able to go for a run this morning at 6 a.m. I hoped we would go right through the night but, obviously, that did not happen.

Senator Ó Domhnaill had time to issue a press release as well.

Senator Ó Domhnaill to continue, without interruption.

I had to correct a lie and issue the truth.

On the amendments, please.

We will say no more. I think Senator Gilroy knows what I mean.

More rebuttal.

On amendments Nos. 22 and 23, please.

It is important that the truth be told. The person who I challenged to a debate would not even come forward and have that debate publicly.

That is not relevant.

That vindicates my position.


This is Senator Ó Domhnaill's second contribution.

The person was hiding all day. I did not see him all day. He was hiding and not answering the telephone to the radio stations.


No interruptions, please.

On amendments Nos. 22 and 23, I agree with Senator O'Donovan on what he has raised here. The legal implications are wide ranging and they have all sorts of connotations from a conveyancing point of view.

They also have all sorts of connotations, for example, in a situation where a septic tank is built on a neighbour's land. Who is liable for a septic tank if it is built on a third party's land or if it is built on commonage, as in a case that was brought to my attention today? There are 166 landowners linked to the commonage and the septic tank is on the commonage. What will happen in a case like that? It is in bog as well and it certainly will not comply. The costs will be colossal. In a situation like that or where, for example a septic tank is built on a neighbour's land where the neighbours are not talking to each other, which is a case of which I am aware as well——

There must be a legal agreement then.

It is important before legislation would come in that these matters would be teased out in the Oireachtas. What are the legal ramifications and the cost ramifications, first, to the Department, and by extension to the taxpayer, if there was a case brought against it because the legislation was brought in, and second, to the individuals concerned? With some of these individuals, for example, the 166 commonage owners, the likelihood is that permission was not even given for the septic tank to be built where it is built. Planning permission was given, the local authority oversaw the process and gave its permission knowing where the septic tank was constructed. Who is liable here? Is it the local authority, the Department, the commonage owner or the owner of the property? The owner of the property is not defined in the legislation.

The owner of the septic tank.

The owner of the property is not defined under section 70B.

Who is the owner of the septic tank?

I am only trying to tease it out. The owner of the property is not defined in the legislation. We are all aware that a considerable number of people are in negative equity with massive mortgages.

We are not going down that road.

It is an important point.

We went down that road last night.

It is an important legal point.

We are speaking to the amendments now.

This point relates to a technicality on the amendment because it deals with prosecutions.

It does not relate to the mortgage.

If an owner is to be prosecuted, who is the owner of the property in circumstances where, for example, the bank may have a loaned mortgage worth €400,000 on a property worth €200,000? The bank may also be taking proceedings against the individual concerned for non-payment of debts.

The Senator is straying from the amendment.

In case the Labour Party and Fine Gael Senators do not realise, people are dealing with these problems every day.

Who put them there?

Why are we bringing in daft legislation to penalise people when we know they are facing these problems? The Government is driving people out of the country and out of their own homes.

They were already driven out.

Senator Ó Domhnaill, can you stick to the amendment?

I would like a response to these points. The Minister and other Members speak about primary legislation as if it implied that the septic tank owner will face a fine of €15 million if he or she does register. Who are they trying to fool? The primary legislation does not define what is in this Bill because the Bill is definitive.

We are amending it.

The Bill is definitive and prescriptive. There is no need to introduce sanctions for septic tanks.

We are not going to leave them at €15 million.

It is the Minister's choice.

Why does the Senator not table an amendment?

We have tabled amendments.

Why did he not table an amendment on this issue?

Senator Ó Domhnaill to continue, without interruption.

We want no prosecutions or legal——

Why not table an amendment?

If the owner of a septic tank or wastewater treatment plant does not provide a valid certificate of registration, the maximum fine is €5,000. I have no difficulty with the provision that inspectors can be subjected to class A fines. However, I have serious difficulties with the prospect of fines being issued for obstructing inspectors. If an elderly person obstructs an inspector out of fear, he or she could face a fine of €5,000. That is not contained in the 2007 Act, nor does it make reference to failures to comply with advisory notices. The broad argument that it was done in 2007 and we are only following through on it is nonsense. It is similar to the accusations made against my colleague from County Cavan, which were unjustified, unfounded and misleading. I appeal to the Minister, out of courtesy to my colleague, if not to me——

Will the Senator speak to the amendment, please?

——and the people of County Cavan, to apologise.

Was he here that night?

The person who issued the statement was not here for much of the debate and I did not hear him contribute much.

Will the Senator get back to the two amendments?

I will. Amendments Nos. 22 and 23 raise a number of questions. The legal ramifications have to be clarified.

The Senator is being repetitious. He is going over the same two amendments.

We are going to wait for an explanation from the Minister.

Most reasonable Members are coming to the conclusion, after many hours of debate, that Fianna Fáil Senators are not interested in protecting groundwater or the environment.

The Minister is contradicting himself.

They are not speaking like people who are interested in public health. We are trying to comply with a judgment while also providing good quality groundwater.

Criminalise the people.

Fianna Fáil criminalised them.

We did not touch septic tank owners.

We are only providing for registration.

There is much more in the legislation.

We are amending the principal Act which Fianna Fáil introduced. Senator O'Donovan expressed concern about the impact of these matters on house sales. If I was buying a house I would seek an engineer's report to ensure everything was in order before I closed the sale. Under consumer protection legislation I would be able to sue the solicitors and other professionals who advised me if their surveys and investigations were not carried out properly. The building energy rating certificate is an example of certification to indicate a house's energy rating. This Bill will operate in a similar manner. The owner of a property is responsible for it. If property cannot move, the owner can. It is in the interest of a property owner, as well as his or her neighbours, to ensure his or her septic tank is functioning properly because otherwise there will be serious implications for public health. It is in everybody's interest to make sure our wastewater systems function properly.

Senator Ó Clochartaigh is asking me to blame Ford for motor accidents. That is the same principle.

It is not the same principle.

The Senator is asking me to blame Ford if I am driving a Ford Mondeo when I have a motor accident. The owner is responsible.

I am glad the Minister clarified that.

Somebody has to be responsible. Human intervention is what changes things. It is also what makes things right. Under this Bill, human intervention will make sure septic tanks do not contaminate groundwater.

If somebody installs a system which is not up to standard, who is responsible?

One can sue the people.

The owner is being criminalised but he or she will have to take a civil action.

Jobs for solicitors.

I did not interrupt the Senators. I ask them to allow me to speak. This legislation has, in the normal way, gone to the Attorney General and we are satisfied that the protections for property rights are in order and it complies with the judgments of the European Court of Justice in terms of the common good as set out in environmental law and property law.

I do not want to labour the point but I am aware of at least half a dozen cases involving problems with septic tanks. In one case a women in my constituency purchased a house in good faith only to discover many years later — she is now an elderly lady — that her septic tank was built on a neighbour's property. It was done 30 or 40 years ago on a word of mouth basis and she is not able to access the neighbouring land to service or clean the tank. She has tried the legal route to access the land because the other party refused her right of way. In such a situation, one may be serving a notice on the owner of the land on which the septic tank was built rather than the owner of the house. That might be a good thing for my constituent because she is very worried about the matter.

Having closed hundreds, if not thousands, of sales in my time, I am aware that architects, engineers and solicitors are responsible for certificates of compliance. However, this is a new kettle of fish whereby a property owner is obliged to register his or her septic tank with the local authority. Does the owner hire his or her own engineer to inspect the property? If I was advising the owner I would suggest that he or she should go to the local authority to ensure it is happy with the situation. That would require two inspections. As the local authority is responsible for registration, it would have to inspect the septic tank for compliance.

Contrary to the arguments made by the Minister last night, it is almost certain that local authority inspections of septic tanks will become compulsory and routine. Perhaps that is a good thing but it will also create additional problems when buying or selling land. If I was buying property, I would write to my local authority to ask whether it carried out an inspection and before I closed the sale I would demand that the tank be inspected either by the authority or an approved inspector. That is different from putting the onus on an independent engineer or architect or solicitor in closing the sale. I accept that we all have professional negligence cover, but this will add another layer of bureaucracy and cost.

The Minister has stated the 2007 Act criminalises people; therefore, we will table an amendment on Report Stage to change this. It is the same point, on which I agree with the Minister.

The Senator should table the amendment on Report Stage.

I will.

I acknowledge that there is a great deal of jousting going on, but this is a serious issue. If a builder was to do a botched job on a septic tank, the householder would know about it because the septic tank would not work, but if the tank was polluting groundwater, he or she might not know about this. The issue is he or she will be prosecuted if groundwater is polluted, not if the septic tank is not working. The level of contamination can fluctuate in a septic tank. There has been plenty of botched building work in recent years and if work on a septic tank has been botched, the householder can take a civil case against the builder. In contrast, if the householder is prosecuted for causing pollution, he or she will be criminalised, even though he or she bought a septic tank in good faith. That is wrong.

I am not doing that.

The Minister has said the owner is responsible. If he comes to my house, I may not be sure what state the septic tank is in until the test is done. If the tank is working but the groundwater is polluted and I fight the issue in the courts, under the legislation, I will be criminalised if the Minister is found to be right and I am found to be wrong. I could still sue my builder who botched the job and might win a civil case against him or her, but I will be left with a criminal record. This is what will be on the register. That will go against me, for example, if I want to travel. That is the issue Sinn Féin has with this provision. This is happening in the case of fishermen from the Aran Islands who have been subject to European sanctions for administrative mistakes in log books. It is a serious issue that needs to be addressed.

As a member of the professions, Senator Denis O'Donovan will be aware that one delegates and devolves functions to architects and engineers to make sure everything is in order before one buys a house. What is required in this case is a certificate of compliance for a septic tank signed by an engineer. There is no need for another inspection to be carried out by a local authority.

The householder must also conform to local authority regulations.

The engineer signs up to the fact that the septic tank is working. That is what a professional does. An architect signs off that a house is in compliance with regulations, while an engineer signs a certificate of compliance indicating that the septic tank is working. If an inspection takes place in a few years at random, for example, in a high risk area, that is a separate issue. The engineer's report is all that is required to close the sale on a house.

I am glad the Senator does.

As a prudent solicitor, I would not accept it.

Solicitors in west Cork accepted the fact that a septic tank was not in the proper place a few weeks ago.

It should not happen and solicitors should not allow it to happen.

The law is an ass.

That covers a multitude.

It includes this legislation.

As a solicitor, I am surprised the Senator accepts that the law is an ass.

That is a known fact and it could apply to this legislation.

Unlike Fianna Fáil, I am fallible.

On the issue raised by Senator Ó Clochartaigh, we have provisions in place to ensure groundwater is protected and the owner is responsible, no matter where the septic tank is located. There is an owner who must be responsible and he or she has to be in compliance. There are consumer protections in place regarding professionals if they do not comply with the appropriate certification procedures.

We had a good example recently in Priory Hall. Professionals signed off on certificates without hardly having looked at the place. The system put trust in professionals by devolving functions to them to do the job properly for consumers, local authorities and householders. As they did not do so, I am changing the regulations to ensure this will not happen again and that there will be mandatory inspections rather than putting trust in professionals to do the right thing for consumers.

The Minister is proving my point.

I am not. The Senator is asking me to take responsibility like a car owner for the manufacturer.

As we have spent one hour and 15 minutes on these amendments, I am putting the question.

Question put: "That the words proposed to be deleted stand."
The Seanad divided: Tá, 24; Níl, 9.

  • Bacik, Ivana.
  • Bradford, Paul.
  • Brennan, Terry.
  • Burke, Colm.
  • Coghlan, Paul.
  • Comiskey, Michael.
  • Conway, Martin.
  • Cummins, Maurice.
  • D’Arcy, Jim.
  • Gilroy, John.
  • Hayden, Aideen.
  • Healy Eames, Fidelma.
  • Henry, Imelda.
  • Higgins, Lorraine.
  • Keane, Cáit.
  • Landy, Denis.
  • Moran, Mary.
  • Mulcahy, Tony.
  • Mullins, Michael.
  • Noone, Catherine.
  • O’Keeffe, Susan.
  • O’Neill, Pat.
  • Sheahan, Tom.
  • van Turnhout, Jillian.


  • Cullinane, David.
  • Ó Clochartaigh, Trevor.
  • Ó Domhnaill, Brian.
  • O'Brien, Darragh.
  • O'Donovan, Denis.
  • O'Sullivan, Ned.
  • Power, Averil.
  • Walsh, Jim.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Paul Coghlan and Susan O’Keeffe; Níl, Senators Ned O’Sullivan and Diarmuid Wilson.
Question declared carried.
Amendment declared lost.

I move amendment No. 23:

In page 6, to delete lines 32 to 34.

Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 24; Níl, 9.

  • Bacik, Ivana.
  • Bradford, Paul.
  • Brennan, Terry.
  • Burke, Colm.
  • Coghlan, Paul.
  • Comiskey, Michael.
  • Conway, Martin.
  • Cummins, Maurice.
  • D’Arcy, Jim.
  • Gilroy, John.
  • Hayden, Aideen.
  • Healy Eames, Fidelma.
  • Henry, Imelda.
  • Higgins, Lorraine.
  • Keane, Cáit.
  • Landy, Denis.
  • Moran, Mary.
  • Mulcahy, Tony.
  • Mullins, Michael.
  • Noone, Catherine.
  • O’Keeffe, Susan.
  • O’Neill, Pat.
  • Sheahan, Tom.
  • van Turnhout, Jillian.


  • Cullinane, David.
  • Ó Clochartaigh, Trevor.
  • Ó Domhnaill, Brian.
  • O'Brien, Darragh.
  • O'Donovan, Denis.
  • O'Sullivan, Ned.
  • Power, Averil.
  • Walsh, Jim.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Paul Coghlan and Susan O’Keeffe; Níl, Senators Ned O’Sullivan and Diarmuid Wilson.
Question declared carried.
Amendment declared lost.

I move amendment No. 24:

In page 6, to delete lines 41 to 45 and substitute the following:

"(11) An authorised person appointed by a Water Services Authority may not have the authority to request the owner of a premises connected to a domestic waste water treatment system to produce a valid certificate of registration in respect of the system.".

This amendment relates to the powers of the inspector to carry out his or her duties. These inspectors should be public servants and should come from the local authorities or the Environmental Protection Agency.

This has nothing to do with the amendment.

The amendment is with regard to the powers the authorised person, namely, the inspector appointed by the water service authority, may have to request a certificate of registration in respect of the system. We appreciate the inspector needs to have certain functions and authority to carry out his or her duties. However, the authority being given to private inspectors under the legislation is far beyond the call of duty with regard to the requesting of a registration certificate. Perhaps the Minister will be able to provide a valid reason for this. I have no difficulty with the request for a registration certificateper se, but the difficulty is——

I ask the Senator to be specific.

——it will be an offence under the legislation for the person not to produce a certificate of registration.

I hope Senator Ó Domhnaill will not embarrass himself by pressing this amendment. I have been extremely charitable until now in my comments on some of the amendments but the effect of this amendment would be to take the power of inspection from inspectors. This seems to be rather an unusual position to take. It is not right or wrong, it is just meaningless. I hope Senator will not advance himself——

No, it is not wrong; I agree with the Senator.

Is it not wrong to give the inspectors sweeping powers? Does Senator Gilroy agree with all of the statutory powers?

I agree it is not wrong and I agree it is not right.

It is absolutely meaningless and cannot be argued. To use legislation to take power of inspection away from inspectors is meaningless and I hope the Senator will not embarrass himself by pressing the amendment.

I have one concern and will make a brief comment. If an inspector calls to an elderly person in a remote area and demands to see a certificate of registration, but the person does not have it——

Elderly people seem to be everywhere.

I ask Senator Landy to follow my scenario. The inspector demands a certificate and if the person cannot find the certificate or has it somewhere else, on a technical point that inspector can haul the landowner, property owner or householder into court and state the date of the visit on which the owner did not provide the certificate demanded. This is a very draconian power for a technical issue and time should be given. If a garda stops me in my car, I have ten days in which to produce my insurance and most gardaí will accept it within 20 days.

To reiterate Sinn Féin's position, we have no problem with inspections or with people being required to have a valid certificate of registration. We do not have any great difficulty with inspectors' powers either, our difficulty is with private inspectors. As we stated on Second Stage and during the debate on previous amendments, there is a wealth of individuals within local authorities who are qualified to carry out these inspections. In addition, many local authorities' planning offices are not as busy as they once were. For these reasons, we fail to understand why the Minister would appoint private inspectors instead of using persons already employed by the State.

These provisions are consistent with the Water Services Act 2007 and relate to local authority compliance rather than inspections. The Senator stated ten days would be a reasonable length of time in which to comply, but that provision is contained on page 6 of the Bill.

That clarifies the matter. We are satisfied.

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

Amendments Nos. 25, 31, 43, 66, 74 and 75 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 25:

In page 6, to delete lines 46 to 48.

Regulations are being introduced. I apologise, as I am a little confused. I hope the Cathaoirleach will bear with me.

We realised that a considerable length of time ago.

The Senator is very kind.

Amendment No. 25 addresses the ten day period subsequent to an offence being committed. While I appreciate what the Minister is trying to achieve, leeway should be given. For example, the French Government and local authorities in France are trying to comply with Directive 75/442/EEC, but the timeframe for individuals to comply with the regulations was changed to four years. The timeframe outlined in the Bill is too tight. Section 4(12) reads: "A person who fails to comply with a request under subsection (11) within 10 days, commits an offence." Is failing to comply with a request to carry out extensive works included in this provision, or does it only apply to a failure to comply with a request to produce a certificate of registration? Will the Minister consider the method used in France, by which people are allowed four years to carry out works recommended by the French equivalent of the Environmental Protection Agency? Although France introduced its law in 2007, the works in question will only be assessed in 2012. France gave people a reasonable timeframe in which to carry out works and local authorities were given discretion to provide funding of various amounts.

The second amendment in the group is No. 31 which relates to a person who has committed an offence being criminalised under the legislation. We have a difficulty in this regard and do not agree with section 4, as constituted, since it introduces criminal sanctions for what the Minister deems minor offences. As both he and the explanatory memorandum state, few septic tanks will not meet the standard. If so, only a small number of people will be involved. For the purpose of clarity, how many does the Department estimate there are? It must have done some homework. How many of the estimated 475,000 septic tanks does the Department believe are meeting the required European standard?

That matter is outside the scope of the amendment.

It relates to offences and the number of people in contravention of the legislation. Is the Department stating few septic tanks are not meeting the standard? That is what the Minister said on Second Stage. If so, I fail to understand why a retrofit grant scheme is not being introduced under the legislation.

The introduction of a grants scheme is a separate matter. The amendment deals with contraventions of the legislation.

It is relevant to the overall cost to be placed on householders.

Amendment No. 32 is not being discussed now but amendment No. 66 is.

The amendment concerns a person contravening a requirement.

Yes. All of the amendments are interlinked and I appreciate the reason they are being grouped. Amendment No. 66 relates to fines and the criminal aspects of the Bill. The Minister's justification is that when the 2007 Act was introduced, the fine set was €15 million. The Act was introduced to deal with major developers who were causing substantial and massive pollution, including in County Wicklow. I understand the case in question might still be ongoing. The Act was introduced to protect the environment in extreme and difficult cases.

We are dealing with domestic——

As the Minister referred to the issue, it is only fair that I be given an opportunity to refer to it. That legislation had nothing to do with septic tanks.

The Senator is straying from the amendments.

My point relates to the offence committed. The Minister is introducing various offences under the legislation, whereby if septic tank owners do not comply with specific criteria, they will be deemed to have committed an offence. He did not need to introduce these offences under the legislation. In fact, he did not need to introduce any legal sanctions. Instead of introducing offences, people should be encouraged to upgrade their septic tanks if they——

That is a different issue, as the Senator well knows.

Encouragement and offences are like night and day. We are creating offences and criminalising people instead of trying to——

We discussed all of these issues while debating the other amendments. There are 77 amendments to this section alone. These are specific elements relating to non-compliance.

This relates to offences and penalties. The line we propose to delete is in section 70L(2), "A person who contravenes a regulation made under this section commits an offence." What are the regulations? As we do not know what they are, what offence could someone commit as a result? We are giving sweeping powers here. A regulation which has not been made could constitute an offence. We are throwing something into the open, saying we might create a law and people will make an offence as a result. It is wholly unacceptable to bring in an offence with a Bill while the regulation surrounding the offence has not been made available to us. Does the Minister expect us to support it?

Amendment No. 75 deals with the line the provision under section 70M, at page 18 of the Bill, which states: "A person guilty of an offence under sections 70B(12), 70C(2), 70E(10), 70G(5), 70H(18), or 70L(2) is liable, on summary conviction, to a class A fine." Senator Wilson outlined very clearly the position in County Cavan. It may be easy to criticise what is being done there but it has taken a considerable lead in the matter. There should have been a grant scheme available in Cavan but the county council did not have the support.

The Senator is moving outside the scope of these amendments.

It is relevant to fines. The fine in County Cavan, if I am correct——

The grant is not relevant.

——is currently €1,270. The class A fines proposed under the Minister's legislation amount to €5,000. Cavan County Council is controlled by the Minister's colleagues, councillors from Fine Gael, and they are proposing to increase the fines to class C fines, or €2,500. There is a big difference between €1,270 and €5,000, as is proposed in this legislation. Using fines is the wrong way to go and the Minister is not encouraging people to protect the environment. There are 475,000 septic tanks in the country and the people who own them have an excellent appreciation of the protection of the environment. Many of those people are farmers or farm families, involved in REPS or agri-environment options schemes. They are involved in farm water conservation and rain water harvesting.

The Senator is moving away from the point.

It is wrong to criminalise those people and bring in fines, whether they are €5,000 or €10,000. I am pleading with the Minister as people have made the following point at meetings in Donegal. Many people are saying they will not pay the registration fee and if they are brought to court and fined, as the judge is entitled to impose a class A fine of €5,000, what happens if it is not paid? People will not be able to pay the fines and will end up in jail. The Minister said the local authority carries out the work, and he is not willing to correct the legislation. When those people come out of jail they may have a bill of €20,000 or €30,000 for the work of the local authority and they will be billed again.

If the septic tank is working there will not be any fines.

How many are working?

I will tell the Senator.

What guidelines will be used?

We are being very repetitious.

I have read much of the European judgment today.

We are covering these items repeatedly.

If the Cathaoirleach wishes to wait we can deal with it in another section as it is relevant to another section. The Environmental Protection Agency guidelines of 2010 have been emanating from Europe since 2007.

This has nothing to guidelines.

It is relevant to the work carried out.

This concerns compliance.

I appreciate what the Cathaoirleach is saying.

The amendment referred to by the Senator relates only to the production of the certificate. It is quite clear and I do not know why anybody would need clarification on this. It is plain to anybody who can read English. There is a precedent here as if a person is stopped while in a car by a garda, he or she may be required to present a driving licence within ten days to the local Garda station. There is no problem and this is the same principle.

A septic tank licence.

I wonder is the Senator deliberately misunderstanding the law. It is a certificate and a licence.

The Senator should speak to the amendment. When we listen to Senator Ó Domhnaill speaking about criminalising people, it appears he does not understand what legislation is about. When a Bill is turned into an Act and made law, it is not a guideline and there are consequences to breaking the law. It seems that Senator Ó Domhnaill is suggesting this is some sort of opt-in scheme as opposed to the law of the land. If there are breaches of the legislation, there must be consequences or otherwise it will not work as a law.

Not all laws have criminal sanctions.

How can I respond to that?

Senator Gilroy, please.

Section 43 is related to amendment No. 24 and it concerns the powers of the inspector. The amendment seeks to remove powers from the inspector. I have made the point about a law being meaningless, which I am glad to see Senator Ó Domhnaill has accepted. Amendment No. 66 again proposes that it would not be an offence to contravene a law, and I cannot understand that. I do not believe any sensible person would understand it either. Amendment No. 75 would also remove the offence coming from breaking the law. This is completely meaningless if the law is to have any force.

This partly relates to what we have discussed about criminality in this Bill. I do not want to labour the point too much but it is a very serious issue. We are raising a serious issue about criminalisation and why we are tabling an amendment in this group of amendments. We do not feel there should be such serious sanctions, as they strike me as a draconian and heavy-handed way of dealing with citizens. There is no clause about inability to pay, which is significant, and there is no acceptance that people might not be able to pay the initial registration fee or upgrade the septic tank. There is no inability to pay clause in any of the Bill, and as a result we suggest that the making of an offence should be taken out. People are not being given the option of making a case for themselves if they are not in a position to pay.

We are trying to highlight the economic position and there are people who cannot and will not pay. There are people who have indicated at public meetings around the country that they will stop inspectors and refuse to allow people on their property. We mentioned the advice of the Attorney General but is the advice available to us?

It is available to the Government. She is the law officer of the Government.

It is not available to us.

Senators can take it that it is okay.

It is on the record that the Minister is happy with the advice.

The Attorney General is happy with it.

I will take the Minister's word for it.

There are some things on the record which are not correct, particularly with regard to County Cavan.

It seems draconian. An older person might lose a certificate or a certificate may not be available. Will we penalise pensioners who lose a certificate in transit? What happens, for example, if there has been a fire in a house and it has been destroyed? Will people be given replacement certificates?

We will be very compliant with it.

It is not mentioned in the Bill.

Common sense comes into it as well, does it not?

Absolutely, and that is why we are raising some of the common sense questions

Try to believe somebody has common sense like the Senator.

That is a little out of order. Many of the cases——

Common sense comes into play.

Many of the cases that end up in court are not the run of the mill cases, but the exceptions——

If somebody complies with the law, they will not be in court.

Senator Ó Clochartaigh to continue, without interruption.

The point I am trying to make is that the law the Minister is putting in place makes it a criminal offence for somebody not to produce the certificate.

One will not have to go to court. There will not be a criminal offence if one is complying with the law.

Exactly, but my point is about somebody who does not have their certificate——

One cannot break the law with no consequence.

Senator Gilroy is confirming that if an old person has lost or mislaid the certificate, or if there has been a fire or a flood and the certificate has disappeared, he is happy that they be given a criminal record because they cannot produce the certificate when the officer calls to their door or within ten days of the officer calling.

Has the Senator ever heard of a duplicate?

Senator Ó Clochartaigh to continue, without interruption.

I have asked the Minister a question.

The Senator asked it a few times.

The matter will not arise.

I am being interrupted in such a way that I am not being allowed to ask the question.

We will let the Minister answer it.

The issue is that it does not say anywhere in the Bill that there is——

The Minister is being very unfair. He is calling a Senator stupid.

The Senator used the word "stupid". If the cap fits wear it.

The Senator is the one who decided to use that word.

Please let Senator Ó Clochartaigh finish.

Exactly, if the cap fits.

Will the Members let Senator Ó Clochartaigh finish?

If a Minister comes into this House and asserts a Senator is stupid, we have a right to defend the Members of the House.

On a point of order——

What is the point of order?

The Minister did not call anybody stupid. That must go on the record. It was Senator Cullinane who used the word "stupid".

I am not taking that point of order. Senator Ó Clochartaigh should continue.

I am merely making the point that there is no provision in the Bill to deal with a situation where somebody might have mislaid or lost their certificate or whose certificate has been destroyed. If an inspector calls to their door and they cannot produce the certificate, there should be some provision in the Bill under which the person can get a copy or duplicate certificate. There is no such provision in the Bill.

Has the Senator ever heard of regulations?

The Minister must allow the Senator to continue.

I am trying to be constructive, because we hope that these matters will not end up in the courts. We are trying to offer suggestions on potential issues that could end up in court.

The Minister talks about common sense but once the inspector appears at the door, common sense will go out the window. However, sin scéal eile.

I formally second the amendments tabled by my colleague, Senator Brian Ó Domhnaill. With regard to the Attorney General, doctors differ and patients die, and an Attorney General's advice is certainly not infallible. It is not long ago that a certain Minister rejected the advice and biddings of eight former Attorneys General on an issue which——

That was a constitutional referendum, which is a different thing altogether.

It was a very important issue.

It was about a referendum. It was not a legal issue.

Senator O'Donovan to continue, without interruption.

The points being made were legal issues, but they were ignored. However, I will not go into that now.

The people decided.

They decided against the Minister because they listened to the former Attorneys General, not the Minister.

Senator O'Donovan, please speak to the amendment.

However, sin scéal eile. I will stick to the amendments. One of the amendments relates to section 70A which provides that a person who contravenes a regulation made under this section commits an offence. I might be wrong but I wish to make a general point on this. I have a grave difficulty with taking a leap of faith on regulations in this regard. It might be commonplace but it is bad legislative practice to introduce legislation, be it primary or secondary, and then subsequently bring forward regulations. They might not necessarily be brought in by this Minister; there could be a change of Minister or a change of emphasis. If and when a regulation or series of regulations is introduced next year or the year after — under the Bill they could be introduced in ten years — an offence can be committed under those regulations. I have a difficulty with that.

The best experts in preparing legislation have sometimes got it wrong, although I am subject to correction. I support the point made by Senator Ó Domhnaill regarding the provision for regulations which in themselves will create criminal offences. The regulations are not available and Minister probably does not know what they are. They will be introduced by him or by a subsequent Minister. That is a dangerous precedent. It is like taking a leap of faith or playing a game of poker, and I did some of that when I was a student. It is like betting in the dark, and that is a dangerous policy.

You have often done it, Senator. You have done it all your life in Fianna Fáil.

The Minister, as a Kilkenny man, will know the old saying that one should never court a woman or buy a pig in the dark.

I will take the Senator's word for it.

I call Senator Wilson.

A pig or a woman looks good at night.

On Senator Ó Clochartaigh's point about the provision of a duplicate if somebody loses their certificate, will the Minister make provision for providing a copy free of charge if that happens? That would be a sensible approach.

It is common sense, not stupidity.

The Minister alluded to the fines, but I seek clarification. A class A fine is a maximum of €5,000. Would the Minister consider grading it by providing another maximum for an initial conviction, for example, a grade C fine of a maximum of €2,500, with a fine of €5,000 for a second conviction? As has been said by a number of my colleagues, people are in severe financial difficulties and might not be in a position to carry out the works that are necessary. They will end up in court. It happens with other matters.

The grading of the fines is in a separate section.

I believe it is appropriate to mention it with regard to offences. I am anxious to hear the Minister's comments on it.

As I have not had a chance to speak yet, I will speak to all the amendments. The septic tanks are an important issue——

I can let the Senator speak to the section later, if she wishes to make a big speech.

There are seven amendments.

They are very specific.

They are grouped because they are specific and interrelated. They deal with the section on offences. I wish to discuss the precedent and making regulations in a Bill rather than after a Bill is passed. Precedent was set with the housing regulations, where regulations were made after the Bill was passed. There was also precedent with the planning regulations, where regulations were made after the Bill was passed.

Precedent was also set in the environmental sector. I do not know what the Senators are talking about.

The wetlands directive.

This Bill is being dealt with in a way that is no different from the way Fianna Fáil put Bills through the House, and made regulations after the event.

That does not make it right.

The Minister said yesterday the regulations will be placed before the Houses of the Oireachtas——

I do not agree that principle.

Everybody is taking the septic tank issue seriously because it affects every household. Members on this side of the House want to get the legislation right as much as Opposition Members. We spent one and a half hours discussing one amendment. The actual issues——

That is how serious we are about the issue.

The actual issues that were discussed were repeated 98 times. I want the House to conduct an analysis. With computers one can carry out research on repetition. I ask the Cathaoirleach to do that.

The Senator should speak to the amendments.

I came into this House to scrutinise legislation.

The Senator should speak to the amendments.

The Senator should speak about what has been said rather than counting how many times people said something.

With regard to the amendment, offences and inspectors calling to houses, I am anxious to ensure that inspectors treat people properly and that the regulations we introduce are acceptable to the people. I will do my damnedest to ensure they are but I cannot do it if we are hindered in discussing it. The Senators should raise an issue and we will discuss it in the House. That is what the Seanad is for, and I became a Member to do that. I did not come here to listen to the same thing over and over, 148 times. Get it right.

The Senator has a very short memory as well. It was 98 times 30 seconds ago, now it is 148.

The Senator should get it right.

Senator Keane has a very short memory.

To reply to Senators Ó Domhnaill and Wilson and the question of fines, fines are already graded on the basis of a maximum of €5,000. The court will take into account the risk to public health, the environment and the environmental damage done. That is how the courts work. Whatever the maximum, the judge has the opportunity to apply less than the maximum. I am sure judges will do so, based on the evidence before the court. Senator O'Donovan can confirm this.

Senator Ó Domhnaill mentioned people having 12 months to avoid registration but people have 12 months to register in 2012. No inspections will be carried out until 2013. We have gone through all this and Senators should give us a break. There will be a comprehensive public information campaign to advise people of the new system, its operation and to provide maintenance tips.

That has already been carried out by Senator Ó Domhnaill.

The Minister is welcome to come to one of the sessions.

People will have ample opportunity to de-sludge and to service septic tanks if they want to do so in advance of inspection. No figures have been compiled by the Department in respect of compliance. Perhaps Senator Ó Domhnaill is doing so on behalf of the State. Cavan is the only county we can use and in the early years of inspection, the failure rate was 25% but the rate is now 11%.

That information is correct.

So is the other figure.

It is most certainly not. I know the Minister has an important appointment and I will not interrupt him but 25% is the only figure that the Minister has provided correctly.

I acknowledge that Cavan County Council has been very responsible, has increased public awareness and is taking responsibility for on-site systems and charging people for the privilege. There are amendments to delete the subsection regarding the timeframe but we cannot accept them because no alternative timeframe is proposed. This is solely to do with producing a certificate of registration. The regulations will take account of what Senator Ó Clochartaigh mentioned about duplication. This has nothing to do with timeframes for remedial works. All it has to do with is establishing a timeframe for producing a certificate.

My question for the Minister is broader than this particular section. There was a period of public consultation prior to the legislation being introduced. Are the submissions available? I checked ten days ago and they were not on the website. I would like to see the submission made by An Taisce——

They are all on the website.

Has the Minister made a comparison or examined best practice in Europe in respect of criminal offences? This is an EU directive. In how many states does the directive apply?

We looked at Northern Ireland and Scotland.

What criminal offences apply and what penalties are in force?

My question concerns the Department's figures on the number of septic tanks in compliance. The public consultation was held after the horse had bolted. This is like the water directive.

Senator Ó Domhnaill held public consultation beforehand.

I am not the Minister and I am not introducing the legislation. I am trying to protect people by fighting against the legislation.

I know that Senator Ó Domhnaill is against the legislation.

I am coming with an informed opinion from the public consultation meetings.

The Senator is against the environment.

The Minister likes to misrepresent people in the House but that is unfair. We spoke about this at length yesterday. I find it hard to fathom how the Department presented figures to the European Commission in defence of this country. If the Minister is saying that fines are coming down the tracks——

That was the Government supported by Senator Ó Domhnaill.

No, the court case was taken in May this year. The current Minister was in office when the case was taken.

It was in 2009. We have listened to a lot of misinformation. Will the Senator accept that the case was taken in the European Court of Justice in 2009?

Does Senator Ó Domhnaill have a question?

We can talk about previous Ministers if we wish. Deputy Hogan has been the Minister for the Environment, Community and Local Government since March. The same officials are in the Department and they do a good job to the best of their ability. What level of information has been obtained from local authorities, given that every county council has granted planning permission since 1963? Has there been consultation with local authorities to find out the number of treatment plants, the number of package plants and the number of sewage treatment plants?

That is the third time the Senator has asked that question.

That information should be provided if we are introducing legislation.

Can we ask the Minister to respond?

How does the Minister justify his statement on Second Stage that very few of the septic tanks will not meet the standard?

Senator, we will not go over——

No, this is fundamental to the Bill.

It may well be fundamental but it is not included in these amendments.

I appeal to the Cathaoirleach.

I have given the Senator some latitude.

It is relevant because it applies to the offences and the implications. In the debate on Second Stage, the Minister said that very few septic tanks would be non-compliant. How can the Minister back that up if he says the Department has no figures? What scientific basis is being used for that statement on Second Stage? The House deserves to know and I want to know.

I have answered all of those questions.

The Minister says that he has answered all of those questions.

Was a mistake made on Second Stage?

Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 23; Níl, 9.

  • Bacik, Ivana.
  • Bradford, Paul.
  • Brennan, Terry.
  • Burke, Colm.
  • Coghlan, Paul.
  • Comiskey, Michael.
  • Conway, Martin.
  • Cummins, Maurice.
  • D’Arcy, Jim.
  • Gilroy, John.
  • Hayden, Aideen.
  • Henry, Imelda.
  • Higgins, Lorraine.
  • Keane, Cáit.
  • Landy, Denis.
  • Moran, Mary.
  • Mulcahy, Tony.
  • Mullins, Michael.
  • Noone, Catherine.
  • O’Keeffe, Susan.
  • O’Neill, Pat.
  • Sheahan, Tom.
  • van Turnhout, Jillian.


  • Cullinane, David.
  • Ó Clochartaigh, Trevor.
  • Ó Domhnaill, Brian.
  • O’Brien, Mary Ann.
  • O’Donovan, Denis.
  • O’Sullivan, Ned.
  • Power, Averil.
  • Walsh, Jim.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Paul Coghlan and Susan O’Keeffe; Níl, Senators Ned O’Sullivan and Diarmuid Wilson.
Question declared carried.
Amendment declared lost.

Amendment No. 26 has been ruled out of order because it involves a potential charge on Revenue.

I would like to object to amendment No. 26 being ruled out of order.

Amendment No. 26 not moved.

I welcome the Minister of State, Deputy Dinny McGinley.

I move amendment No. 27:

In page 7, to delete lines 18 and 19.

Tá lúcháir orm go bhfuil mo chomhghleacaí as mo chontae féin, an tAire Stáit, anseo chun na leasuithe seo a phlé. Ó thaobh na Céime seo den Bhille, tá dhá líne faoi alt 70(c), línte 18 agus 19, “comply with regulations made under section 70(l)”. Tá seo ag tabhairt cumhachtaí mór agus leathan don Aire regulation a thabhairt isteach am éigin tar éis don Oireachtas glacadh leis an Bhille. Seo an áit ina bhfuil ceisteanna ag baint leis an Bhille, go háirithe nuair a ghlacaimid leis nach bhfuil na treoirlínte a bhaineann leis na critéir a leagfar síos faoin Bhille seo foilsithe go fóill. Má ghlacaimid leis na treoirlínte sin agus má tá siad cosúil leo siud atá leagtha síos ag an EPA don bhliain 2009 nó 2010, beidh siad fíor-thromchúiseach do cheantair thuaithe. Bhí mé ag caint leis an EPA faoi seo agus dúirt an fhoireann ansin má tá aon treoir le teacht isteach agus má tá an treoir sin le comhlíonadh faoin bhreitheamh a thug an Chúirt Eorpach, ní mór an t-uisce go léir ón lá inniu ar aghaidh a choinneáil glan agus slán. Sin a dúirt an Coimisiún. Más sin an rud atá i gceist, beidh dualgas ar an Roinn faoi na treoirlínte atá á leagadh síos stopadh de réir na dtreoirlínte a bhí ag teacht ón Eoraip sa bhliain 2007, treoirlínte fíor-thromchúiseacha don tír seo. Tá sin glactha ag an EPA mar code of practice in 2010. Tá impleachtaí leis sin ó thaobh an chaighdeáin a bhaineann leis an dabhacj séarachais, an percolation area atá ag dul amach ón dabhach séarachais agus mar sin.

This is the crux of the Bill. I appreciate that Government Members may not fully realise the implications of the legislation when it is implemented. Under section 70(l), the Minister, following consultation with the Environmental Protection Agency, may make regulations for the purpose of this Part and the regulations may make provision for maintenance plans for treatment plant systems, performance standards for treatments systems or septic tanks, standards and procedures to apply where domestic wastewater treatment systems are being emptied, the sludge going to a designated site, desludging, the contents being disposed of and the manner in which they are disposed of and any other matters the Minister may prescribe. Under the Bill, the Minister will forever have the power to introduce any matters he may prescribe.

The major difficulty with this section of the Bill is that it refers to the maintenance and operation standards for septic tanks and treatments systems. As these standards have not yet been published, no one in this room knows what they will be. The Minister has not published them or answered any questions in the Houses on them.

That is being dishonest.

The Senator is running out of things to say.

That is why they were not available; they had not even been drawn up.

The Minister did not even answer the last question I asked before he left the House tonight; he did not even stand up.

The Minister answered that question three times.

He fudged it three times.

The Senator is running out of things to say.

I am not. That is what the Bill is all about and Government Members can go to their constituencies and explain what the regulations will mean financially and in terms of non-compliance.

Let us look at the two scenarios brought forward by the Minister in terms of maintenance and servicing standards. He would have everyone believe there is an easy way, that we can bring forward his guidelines. He does not work in the EPA; he is the Minister for the Environment, Community and Local Government. The EPA has adopted a code of practice that is to be implemented by all local authorities. Under the directive for which the European Union is looking and which An Taisce is getting ready to monitor, if the Minister does not put in place sufficient standards, the matter will be referred back to the Commission and Ireland will before the European Court again. It is fair enough for the Minister to say there is an easy way, but he has not told us what it is or what the standards will be. Will he adopt the 2010 EPA guidelines?

I ask the Cathaoirleach to consider if the amendment is in order, as the wording is incorrect. Senator Ó Brian Domhnaill uses the word "practical" when he should really use "practicable", which means to be able to put something into practice, as opposed to it being desirable.

The Senator is reading the wrong amendment.

Senator Brian Ó Domhnaill is misleading the House at this stage.

For the purposes of clarity, I am being accused of misleading the House. I am asking for two lines of the Bill to be deleted.

On a point of order, the Senator is misleading the House and misrepresenting what the Minister said.

That is not a point of order.

I think it is because he is misleading the House.

The Senator must resume his seat.

I agree that the House was misled but not by this side.

The Senator is misleading the House.

Senator Ó Domhnaill to speak to the amendment.

I want to speak to it. I researched this matter as much as I could and would appreciate the opportunity to address the House on the issues involved.

If we look at the 2010 EPA guidelines, they are very stringent and aim to protect the water supply. Everything the Minister has spoken about relates to protecting the groundwater supplies. All septic tanks would have to come in under inspections and upgrades, retrospectively, if that were to be the case. That is the point I am making. If that is the case, according to the Environmental Protection Agency officials to whom I have spoken, the Minister would have to adopt the 2010 EPA guidelines. If that is the case, we are looking at massive costs for people living in rural areas. In fact, the regulatory impact assessment, RIA, which I outlined before that goes with the Bill outlines costs of up to €17,000, if one takes areas like west Connemara.

The Senator is scaremongering again.

Senator Ó Domhnaill to continue, without interruption. I remind the Senator that he has made those points over and over again.

I have not made this point. In areas such as Connemara, and Senator Ó Clochartaigh's area or even parts of my constituency, which the Minister of State, Deputy McGinley would be aware of, percolation areas have been built on rock and may have soil of only between 1 ft. and 1.5 ft. Soil, to a depth of 5 ft., would have to be imported into that site to meet the standards that Europe is looking for in percolation areas. The standards will also mean that the percolation area pipe will have to be increased in those dwelling houses. A three bedroom dwelling house would require 18 m of pipe per person multiplied by six.

We had that yesterday.

In a four bedroom dwelling house, one is looking at eight persons, according to the EPA and the European Union, living in the dwelling house.

It is a pity you did not sort that out with the European Union in recent years.

Senator Brian Ó Domhnaill to continue, without interruption.

These are the details, this is what Senators are voting for.

That is absolutely false.

The Senators are contradicting me and voting for it.


The Senator is speaking to the amendment.

He did not clarify it.

He did clarify it.

The Minister for the Environment, Community and Local Government has not given this House clarification or any details on what the standard will be.

Senator Ó Domhnaill was sitting here. I was too.

That is the reality of the situation.

The Senator does not want to hear the truth. The Minister did clarify the position.

Will the Senator, please, allow Senator Ó Domhnaill to make his contribution?

A Chathaoirligh, I am sorry, I apologise.

It sounds like an echo. We seem to be hearing the same argument over and over again.

What we sought in the Bill was that the Minister would publish the standards to be achieved prior to the enactment of the legislation. That is not what the Minister is agreeing to do. It is like people — pigs in a poke — voting for something that they do not know what they are voting for. That is exactly what is happening here. That is why we cannot support the Bill in its current form. How can I go home to my constituency——

That is not the way.

——or over to the west and say, "There is a new regulation, we do not know what it is, we voted in through and the Minister will agree the standard with the Environmental Protection Agency. We do not know what the standard is but it probably will mean that your septic tank will not meet the standard and we cannot tell you what the standard will be."

A Senator

It will be reduced from €200 to €50

The Minister has been fudging a lot of the questions that have been coming from this side of the House in the past 48 hours.

It is the EPA that makes the regulations.

I know the Minister had to leave as he had an engagement in County Kilkenny and I appreciate that he had to speed down the road to try to beat his colleague, Deputy John Paul Phelan, to the event.

That is not relevant to this amendment. I ask the Senator to speak to the amendment.

The Senator should withdraw that remark.

If I can delve into the decision of the European Court of Justice. I am trying to outline what the scenario will be.

What the European Court of Justice states is that Ireland is obliged to transpose and apply the requirements of the direction to such waste waters. However, Ireland has not transposed nor claimed to have transposed these requirements. That is true. Furthermore it has not complied with these requirements in practice, more particularly Ireland has not complied for the wastewaters in question. That is right.

The Minister referred to Articles 4 and 8 of the directive. Article 4, according to the court judgment is important because it sets out environmental objectives that should be pursed and respected in relation to other duties of the directive. The Commission submits in the case that was taken against Ireland that there is also a failure to comply with Article 4 in practice in the Lough Leane catchment, with which members might be familiar. This is borne out by evidence, adduced of the environmental harm resulting from a failure to control adequately septic tanks. We have had no explanation as to what "control adequately" will mean.

Why is the Senator reading this in the House? I think the Senator should know it off by heart, as he is after reading it four times.

Will Senators allow Senator Ó Domhnaill to make his contribution?

The Senator is asking me to mind read what the Minister is proposing to sign as a regulation. I think that is a bit unfair.

I ask the Senator not to be repetitive and to speak on the amendment.

The directive and the judgement goes on that Article 8, which was referred to by the Minister, is important because it stipulates that waste is disposed of in accordance with the directive. Waste must be disposed of in accordance with the directives. There is also a failure to comply with Article 8 practice in Ireland since Ireland does not ensure that domestic wastewaters are disposed of in accordance with the directive. It goes on to Article 12 of the judgement,

The Senator is looking at that judgement since 2009 and did nothing about it.

Senator Keane has indicated that she will speak.

It is actually 2008.

That is worse.

I fail to understand why the Minister would not add in the provision under Article 12 to this regulation before the regulation is adopted. Article 12 of the European Court of Justice judgment provides that in relation to septic tanks and other individual treatment systems, in as much as to operative effectively, such systems require periodic removal and disposal of sludges, and that they are done in a professional manner involving such removal and disposal. This is not addressed in Irish law currently. There is an opportunity for the Minister to take on board, as we on this side of the House were proposing, that the desludging programme could come in as part of this regulation. If the Minister wanted to introduce a de-sludging programme, we would support him. In our view it is reasonable that it would be paid for from the money available under the urban wastewater servicing programme.

That is just silly.

Maybe the troika will fund it.

Senator Ó Domhnaill to continue, without interruption.

The Senator can explain that to the people in her constituency who have a septic tank. There is no need to explain to me, I know.

Senator, please continue.

I fail to understand why that could not be done. It would comply with Article 12 of the judgment and once compliance had been achieved under Article 12 we could try in the intervening years to deal with Articles 4 and 8 to at least show the Commission and the European Court of Justice that something is being done and that a plan is in place. The people should be consulted and the Oireachtas Members and the public should know what standards will be achieved prior to the legislation coming through the Oireachtas.

The Senator's incompetence has us where we are today

What is actually happening is the reverse. What is happening in the legislation is that the Minister, by regulation, after the Bill is enacted, is going to sign a regulation

That is the normal way legislation takes place.

That does not make it right.

That is the way you did it before in planning and housing.

That does not make it right. I was never a Minister.

The Senator should speak to the amendment.

When this Bill is passed the Minister will meet the EPA. Officials from the Department of the Environment, Community and Local Government and the Environmental Protection Agency will sit down with the Minister and they will come up with a maintenance and operations standard that will apply to every septic tank in the country because it just cannot apply to one in five. That will not satisfy Europe according to the judgment I have read.

The other issue is that Minister is missing a golden opportunity to bring in a programme that could fast-track our compliance under the directive by bringing in the national desludging programme. What is the Minister actually doing? He is leaving scope to make the households of Ireland pay for the desludging programme themselves. He will probably and possibly and in all likelihood——

As they will have to.

How will the Minister comply with the judgment?

The Senator is being repetitive.

This is the crux of the point.

The Senator has only one argument.

I would like the Senator to get to the point; he has been on his feet for 20 minutes.

We are at amendment No. 27 and he is making the same argument on every amendment.

Please let the Senator finish.

This is ridiculous.

Will Senator Ó Domhnaill, please, get to the point?

He should get back to Donegal and take on Senator Harte.

Does the Senator have a mirror?

I invite any Government Senator to come to my public meetings and explain where he or she is coming from.

There is no need for Senator O'Neill to act like his colleague, the Minister.

It just will not wash.

Senator Ó Domhnaill must make his point or I will move on to the next Senator.

The point is that the Minister will be forced under Article 12 of the European Court judgment to impose compulsory desludging on householders paid for by the same householders. That is why he will not accept our amendment. That is a fact; the Senators should read the judgment.

Who was in government when the judgment was made in 2009?

It is a waste of time asking that question.

Senator Wilson is dying to get in there and Senator Ó Domhnaill will not let him in.

Please let Senator Ó Domhnaill finish.

I know there is agitation on the other side of the House and they do no want to face their own people.

We do not like repetition 400 times.

We will provide them with the relevant information we have.

I will call the next Senator.

We will press this amendment because we feel it is wholly improper. The Minister signed a regulation recently that will confine massive parts of the country to wetland. Members of the Joint Committee on Communications, Natural Resources and Agriculture know what I am talking about. This regulation will give sweeping powers away again.

The Senator is being repetitive and if he does not get to the point I will put the question.

I have made my point.

The Senator has made it several times.

Tá a fhios agam nach bhfuil an tAire Stáit, an Teachta McGinley, freagrach as an Bhille seo; níl mé ag cur an mhilleáin air. Tá mé ag iarraidh na himpleachtaí a ardú.

That is not relevant to the amendment.

Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 23; Níl, 9.

  • Bacik, Ivana.
  • Bradford, Paul.
  • Brennan, Terry.
  • Burke, Colm.
  • Coghlan, Paul.
  • Comiskey, Michael.
  • Conway, Martin.
  • Cummins, Maurice.
  • D’Arcy, Jim.
  • Gilroy, John.
  • Hayden, Aideen.
  • Henry, Imelda.
  • Higgins, Lorraine.
  • Keane, Cáit.
  • Landy, Denis.
  • Moran, Mary.
  • Mulcahy, Tony.
  • Mullins, Michael.
  • Noone, Catherine.
  • O’Keeffe, Susan.
  • O’Neill, Pat.
  • Sheahan, Tom.
  • van Turnhout, Jillian.


  • Cullinane, David.
  • Ó Clochartaigh, Trevor.
  • Ó Domhnaill, Brian.
  • O'Brien, Darragh.
  • O'Donovan, Denis.
  • O'Sullivan, Ned.
  • Power, Averil.
  • Walsh, Jim.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Paul Coghlan and Susan O’Keeffe; Níl, Senators Ned O’Sullivan and Diarmuid Wilson.
Question declared carried.
Amendment declared lost.

As it is now after 9 p.m. I am required to put the following question in accordance with the Order of the Seanad of this day: "That sections 4 and 5 and the Title are hereby agreed to in Committee and that the Bill is reported to the House without amendment."

Question put.
The Seanad divided: Tá, 23; Níl, 9.

  • Bacik, Ivana.
  • Bradford, Paul.
  • Brennan, Terry.
  • Burke, Colm.
  • Coghlan, Paul.
  • Comiskey, Michael.
  • Conway, Martin.
  • Cummins, Maurice.
  • D’Arcy, Jim.
  • Gilroy, John.
  • Hayden, Aideen.
  • Henry, Imelda.
  • Higgins, Lorraine.
  • Keane, Cáit.
  • Landy, Denis.
  • Moran, Mary.
  • Mulcahy, Tony.
  • Mullins, Michael.
  • Noone, Catherine.
  • O’Keeffe, Susan.
  • O’Neill, Pat.
  • Sheahan, Tom.
  • van Turnhout, Jillian.


  • Cullinane, David.
  • Ó Clochartaigh, Trevor.
  • Ó Domhnaill, Brian.
  • O’Brien, Darragh.
  • O'Donovan, Denis.
  • O'Sullivan, Ned.
  • Power, Averil.
  • Walsh, Jim.
  • Wilson, Diarmuid.
Tellers: Tá, Senators Paul Coghlan and Susan O’Keeffe; Níl, Senators Ned O’Sullivan and Diarmuid Wilson.
Question declared carried.