Oireachtas Joint and Select Committees
Tuesday, 6 December 2022
Joint Oireachtas Committee on Housing, Planning and Local Government
Issues Relating to Quarries and Deleterious Materials: Discussion
Steven Matthews (Wicklow, Green Party)
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I welcome everybody. This afternoon, we will discuss issues relating to quarries and deleterious materials. We are joined by Mr. Feargal Ó Coigligh, Ms Sarah Neary and Mr. John Wickham from the Department of Housing, Local Government and Heritage. They are accompanied by Mr. Eoin McGrath of Geological Survey Ireland. We are also joined by Ms Geraldine Larkin, Mr. Enda McDonnell, Mr. Seán Balfe and Ms Yvonne Wylde from the National Standards Authority of Ireland. We are also joined by Ms Mairéad Phelan and Mr. Richard Butler from the National Building Control and Market Surveillance Office. The witnesses are all very welcome. I thank them for their submissions, which they provided to the committee in advance. Before I ask them to make their opening statements, I will read a note on privilege.
I remind members of the constitutional requirement that members must be physically present within the confines of the place where the Parliament has chosen to sit, namely Leinster House, in order to participate in public meetings. Those witnesses attending in the committee room are protected by absolute privilege in respect of their contributions to today's meeting. This means they have an absolute defence against any defamation action for anything they say at the meeting. Both members and witnesses are expected not to abuse the privilege they enjoy. It is my duty as Chair to ensure that this privilege is not abused. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that they comply with any such direction.
Members and witnesses are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise, or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.
Mr. Feargal ? Coigligh:
I thank the committee for the invitation to attend today’s meeting to discuss issues relating to quarries and deleterious materials. I am an assistant secretary in the housing policy, legislation and governance division of the Department of Housing, Local Government and Heritage. Today, I am accompanied by my colleagues from the Department, Sarah Neary, who is the principal adviser in the building standards advisory unit, and John Wickham, who is a senior adviser in the same unit. I am also joined by Eoin McGrath, who is a senior geologist in Geological Survey Ireland.
I want to give some context to how materials are considered in the overall Irish building control system. The Department of Housing, Local Government and Heritage has policy responsibility for the implementation of the EU construction products regulation, CPR. This regulation sets out rules for the marketing of construction products to facilitate the free movement of such products within the EU. In order to achieve this, construction products for which a harmonised European product standard is in force, or for which a European technical assessment has been issued, need a declaration of performance from the manufacturer. The product must also be affixed with a CE marking before it can be placed on the internal market. There are approximately 450 harmonised standards published, covering a wide range of construction products including concrete blocks, aggregates for concrete and hardcore.
In order to affix a CE marking, most construction products require the intervention of a notified body. Notified bodies are designated bodies that carry out third-party tasks, typically being product certification bodies, factory production control certification bodies and testing laboratories. The degree of intervention by a notified body in the placing of a product on the market is set out in the relevant harmonised standard. Under the CPR, notified bodies must be established in a member state and be designated by the member state notifying authority for performing the specific tasks in relation to specific technical standards. The Department of Housing, Local Government and Heritage is the notifying authority in Ireland.
The National Standards Authority of Ireland, NSAI, which the committee will hear from shortly, has produced additional guidance for some harmonised standards under the CPR in the form of standard recommendations, SRs. These set out appropriate minimum performance levels for specific intended uses of certain construction products in Ireland. SRs outline the precautions to be taken in a quarry. One such precaution is the requirement for a geological and petrographic assessment of the raw material, that is the quarry deposit, and of the finished aggregate product for use in concrete and concrete products, and for those assessments to be carried out at regular intervals. The key objective of the geological and petrological examination is to determine if aggregates for the manufacture of concrete products are fit for purpose and if deleterious materials are present in such form or quantity that may affect end use and performance. The SRs also require third-party oversight of the manufacturing process by a notified body such as the NSAI. Ultimately, the manufacturer is responsible for compliance with the CPR and, in particular, for the declaration of performance and CE marking of the construction product he or she is placing on the market. This requires having full knowledge of the raw material and having regard to the end product's suitability for use in construction works in accordance with the relevant SRs published by the NSAI.
While the CPR concerns itself with the conditions that apply when placing a construction product on the market, specifiers, designers, builders, certifiers and end users should, when drawing up specifications, refer to the harmonised standards and specifically to the performance requirements of individual characteristics for the particular end use, as outlined in the NSAI standard recommendations. They should also review the manufacturer’s declaration of performance, check that the performance or performances declared are in line with the NSAI standard recommendation and ensure all works are carried out using “proper materials.....which are fit for the use for which they are intended and for the conditions in which they are to be used” to ensure compliance with the building regulations.
The Department also has policy responsibility for the market surveillance of construction products covered by the CPR. The aim of market surveillance activity is to ensure that non-compliant products are identified and taken off the market, with unscrupulous and, or criminal economic operators prosecuted and penalised for their actions. In this context, it is important to note that the overarching objective of a market surveillance authority is to ensure that products that comply with the provisions of the CPR are placed on the market. Where non-compliance is identified, market surveillance activities are designed to encourage economic operators to take appropriate corrective actions to redress the position within a reasonable period of time.
In Ireland, each local authority is a market surveillance authority. In addition, in 2020, to strengthen the market surveillance function, the National Building Control and Market Surveillance Office, NBCMSO, a local authority shared service hosted by Dublin City Council, was appointed as a competent authority for the carrying out of market surveillance functions for all related construction products on a nationwide basis. Ms Mairéad Phelan from that office will address this committee shortly. The NBCMSO also has enforcement powers and supports the 31 local authorities in the State in carrying out market surveillance functions. In its early years, the work of this office has concentrated on construction products generated by economic operators from quarries and pits.
Market surveillance authorities have significant powers including to obtain access to the place of manufacture or storage, request technical information, select samples of the construction product and carry out evaluations, examination or tests on such samples. Where construction products are placed on the market that do not comply with the requirements set out in the CPR, market surveillance authorities have powers to direct the relevant economic operator to take the necessary corrective actions to bring the product into compliance. Where this does not work, there are further procedures that may result in the product being withdrawn or recalled from the market, its use subject to special conditions, or its availability on the market being prohibited or restricted.
The committee will be aware of the issues that arose in County Donegal, the audit the Minister requested and the report that was published earlier today. To provide some background to that, in its role as notifying authority under the CPR, the Department received a notification from NSAI on 15 October last year regarding the withdrawal of a certificate of conformity of the factory production control for aggregate concrete masonry units from a block manufacturer in County Donegal. On foot of this notification, the Minister requested the NBCMSO, in partnership with Donegal County Council and with the support of Geological Survey Ireland, to carry out an audit of all quarries in Donegal to evaluate relevant economic operators’ compliance with the CPR when placing relevant construction products, namely aggregate concrete blocks and, or aggregates for use in concrete products, on the market. The Minister received this report on 30 November and published it this morning. Members of the committee may wish to raise issues in relation to that report.
The Department is committed to continuing to support the NBCMSO and the market surveillance authorities with the implementation of the national market surveillance strategy 2022 and the implementation of adequate controls on a risk-assessment basis to contribute to a safer market place which ensures a high level of protection of public interests. While much work has been undertaken to strengthen the regulatory framework to ensure that products from extractive industries comply with the provisions of the CPR, the Department acknowledges that there is more to do in the context of the findings of the audit report and the broader programme for Government commitments.
I thank the committee for inviting us here today. My departmental colleagues and I look forward to engaging with members on this issue and will be happy to answer any of their questions.
Steven Matthews (Wicklow, Green Party)
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I thank Mr Ó Coigligh very much. I invite Ms Larkin to speak on behalf of the NSAI.
Ms Geraldine Larkin:
I thank the committee for the invitation to assist in its consideration of the issues relating to quarries and deleterious materials.
I am the chief executive officer of the NSAI. My colleagues, Mr. Seán Balfe, head of sustainability and built environment, Mr. Enda McDonnell, director of standards and metrology, and Ms Yvonne Wylde, head of standards technical, and myself are here today to assist the committee in its work and address any questions members may have. My comments will address NSAI’s work in supporting businesses in the construction sector to comply with regulatory frameworks.
NSAI, as the Irish national standards body, was established by the National Standards Authority of Ireland Act 1996 as an agency under the auspices of the Department of Enterprise, Trade and Employment. It is the national member of the international and European standardisation organisations, International Organization for Standardization, ISO, International Electrotechnical Commission, IEC, and the European Committee for Standardization, CEN-CENELEC, and is also a provider of certification for statutory and non-statutory schemes. The NSAI has a broad role that creates the infrastructure for products and services to be recognised and relied on worldwide. The benefits of standardisation and use of standards are well recognised. Standards have been found to create efficiencies and mitigate risks, they facilitate elimination of trade barriers and assist in establishing market and consumer confidence. Standards also play a significant role in supporting Irish Government policies and legislation.
Standardisation of construction products is a core NSAI activity for which we have a strong reputation. The authority facilitates stakeholders representing all aspects of Irish life to build consensus on standards needed for their sectors in the development of national, European, and international standards and related guidance documents. We are supporting the Department of Housing, Local Government and Heritage in the EU CPR acquisprocess. This establishes the essential characteristics for construction products for incorporation into harmonised technical specifications. To support application of the CPR in Ireland, we publish the harmonised European standards, ENs, as Irish standards and have produced additional guidance to some ENs in the form of standards recommendations, SRs, for specific uses of certain construction products in Ireland.
Of the suite of standards addressing the design of masonry structures, EN 771 is the specific standard series relating to the specification of masonry units generally and IS EN 771, part 3, deals specifically with aggregate concrete blocks. In relation to this standard, NSAI has published SR 325 on recommendations for the design of masonry structure in Ireland to Eurocode 6. This provides guidance for particular situations as regards durability for finished work and the use of category 1 aggregate concrete blocks in buildings. Irish block manufacturers are, therefore, required to have third party oversight of their factory production control by a notified body. Category 1 aggregate concrete blocks should, therefore, meet the prescribed density and compressive strength of IS EN 771, part 3and be made with dense aggregates conforming to IS EN 12620 on aggregates for concrete and SR 16 of 2016 on guidance on the use of IS EN 12620. Given that aggregate is a key constituent of aggregate concrete blocks, SR 16 also outlines the precautions to be taken in the quarry to reduce the risk of harmful impurities in aggregate production.
With regard to NSAI’s certification role for the construction sector, we are a notified body designated by the Department of Housing, Local Government and Heritage, with a scope of activities related to quarries. The authority operates a number of schemes for construction products which can apply to quarries. The three most common are certification to IS EN 12620 on aggregates for concrete, I.S. EN 771, part 3 for concrete blocks and IS EN 13242 on aggregates for materials for use in civil engineering work and road construction. In conducting audits of the manufacturers, the NSAI’s role as a notified body is to assess and audit the manufacturer’s factory production control system, followed by annual surveillance visits. The scope of the certification process relates to the manufacturer’s capability to produce compliant products. The factory production control system is the permanent control of production exercised by the manufacturer.
By drawing up a declaration of performance and affixing the CE marking, the manufacturer takes full responsibility for the conformity of the product with its declared performance.
NSAI's work in standards and certification for the construction sector is essential for the value it brings to citizens and businesses in everyday life. We play an important role in this sector. I can assure the committee of our commitment through this important work to support the construction sector. Together with my colleagues, I am available to answer any questions that the committee may wish.
Steven Matthews (Wicklow, Green Party)
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I thank Ms Larkin. I will now move to Ms Phelan. I note Ms Phelan's submission is a 22-page submission. The opening statement is only the first few pages. I wanted to check that.
Ms Mair?ad Phelan:
Gabhaim buíochas leis an Chathaoirleach. It is the opening statement. The other is for reference only.
I am Mairéad Phelan and I am head of the National Building Control Office. I am here with my colleague, Mr. Richard Butler.
To set the scene, in 2019, the National Building Control Office, was set up as a specialist shared-service business unit hosted by Dublin City Council. The office provides oversight, support and direction for the development and standardisation of building control in the State. The office is also responsible for the national building control management system for the administration of building control in Ireland. There are approximately 158,000 users of that system with all the commencement notices, fire safety certificates, disability access certificates, etc., online managed through it.
In 2020, we were set up as the National Market Surveillance Office. This was also a specialist shared-services business unit hosted by Dublin City Council. The office, with the support of the national competent authorities, the Geological Survey of Ireland, GSI, and Transport Infrastructure Ireland, TII, co-ordinates market surveillance of construction products activity in the 31 building control authorities, which are also market surveillance authorities.
The office develops and manages the implementation of, in consultation with all of the stakeholders, Ireland’s national market surveillance strategy. The first strategy we did was the national market surveillance programme 2021, which is published on the EU website. The 2022 national market surveillance strategy is also published. The links for them are provided in my submission.
An advisory committee with membership from the three regional building control authorities which represent all the local authorities in Ireland, the Construction Industry Council, the National Directorate Fire and Emergency Management, the Chief Fire Officers Association and the Department is chaired by Mr. Richard Shakespeare, who is the assistant chief executive of Dublin City Council, on behalf of the 31 chief executives and it manages the shared services offices.
The office, together with the 31 market surveillance authorities, supported by the competent authorities carry out reactive and proactive market surveillance under the European Union (Construction Products) Regulations 2013 in the State. These regulations prescribe the obligations on economic operators, the requirements for the marketing of construction products in the EU, and the market surveillance procedures to be followed and the powers conferred on building control authorities, which, as I have said, are the market surveillance authorities.
The primary purpose of the construction products regulation is to break down technical barriers to trade to ensure the free movement of construction products across member states. In my submission, I have given the committee a link to frequently asked questions on this.
It does this - my colleague from the Department has already referred to it - by setting out a system of harmonised standards. There are more than 450 of those standards; an agreed system of attestation of conformity and verification of constancy for each product family which my colleagues from the NSAI have spoken about; the framework of notified bodies; and the mandatory CE marking of construction products.
The construction products regulation was given effect in the State on 1 July 2013 with the result that each construction product, for which there is a harmonised standard, known as a hEN, or a European technical assessment in force, must be accompanied by: a copy of the CE marking, which enables construction products to move across the EU member states, avoiding new assessments and certifications so that it can be made available in any of the EU 27; a valid declaration of performance, DoP, which provides information on the performance obtained using the assessment methods provided by the applicable harmonised technical specification; and the instructions and safety information relating to the product.
In the context of construction products, market surveillance refers to the activities carried out and the measures taken by market surveillance authorities, of which there are 31 plus ourselves and the competent authorities, to ensure that construction products comply with the requirements set out in the construction products regulation and therefore do not endanger the health, safety or any other aspect of public interest protection.
It is important to note that given the commercial sensitivities that may be involved, it is incumbent on all market surveillance authorities to take reasonable measures to guarantee the confidentiality of the technical documentation that we look at and such other information as may be supplied to us as market surveillance authorities by an economic operator under these regulations to support the compliance of the product.
It is the responsibility of the economic operators, according to their respective role in the supply chain, to ensure compliance with the relevant legislation and to fulfil all appropriate conformity assessment obligations.
Market surveillance authorities are required to perform appropriate checks on the characteristics of products on an adequate scale, by means of documentary checks and, where appropriate, physical and laboratory checks and, when doing so, shall take account of established principles of risk assessment, complaints and other information including the national market surveillance strategy. Where economic operators present test reports or certificates attesting conformity issued by an accredited conformity assessment body, market surveillance authorities must take due account of such reports or certificates.
It is important to note that the market surveillance authority does not and should not issue a compliance statement which may be seen as endorsing a product. When assessing the compliance of a construction product, the market surveillance authority may choose to consider the relevant legislative requirements and do a full compliance assessment or a partial compliance assessment - that will depend on the risk assessment. We look at formal compliance, which is checking the administrative requirements, that is, documentation, markings, etc., and-or technical compliance, which is testing the essential characteristics for compliance.
Construction products may have a very different intended use in buildings or civil engineering works - it is important to recognise that - and they may fulfil different performance requirements. A construction product may be compliant with the requirements of the construction products regulations but may not satisfy the requirements of the building regulations, which mean it must "be fit for the use for which they are intended and for the conditions in which they are to be used". That is what was alluded to by my colleague here in the Department. Therefore, a responsibility lies with the project designer and end user to correctly prescribe the product to be used in the specific construction project and to the end user or purchaser so that the prescribed performance for the specific intended use is checked and incorporated in the design. What we are saying is that the end user must check the CE marking, the DoP and the safety information in use to ensure that the construction product is fit for the intended use. There is good guidance given by the Department in "A Guide to the marketing and use of Aggregate Concrete Blocks ...", which is on its website. It outlines for designers, builders and end users their responsibilities.
In Ireland, the economic operator must take into consideration the national provisions, that is, the standard recommendations to which we have already alluded. As part of our market surveillance strategy, we have looked at the construction products that relate to: standard recommendation, S.R. 16, that is, aggregates for concrete which are used in ready-mix concrete, concrete blocks, precast concrete lintels, floors, walls, etc.; S.R. 17, which is used in bituminous mixtures, such as aggregates for roads; S.R. 18, the aggregates for mortar, internal plastering and external rendering, and floor screeds; S.R. 21, other aggregates for use in civil engineering works which we looked at as well and which are the aggregates that are used for underfloor fill and for under roads and under footpaths; and S.R. 325, which is the bible in relation to the design of masonry structures in Ireland - the structures which are constructed of concrete, aggregate concrete blocks, concrete floors, lintels and anything that is made of concrete - it is the standard design for masonry in Ireland. Each individual construction product manufactured to a harmonised European standard has a specified threshold level of performance for a given essential characteristic of the product and these are set out in Annex ZA of each harmonised standard.
In the context of what I have spoken about so far, we have completed the national market surveillance programme 2021 and we are progressing the strategy for 2022.
I set out what we have done in the table on page 11. Overall, the office has: carried out inspections on 163 aggregate-related inspections and 58 reactive inspections; tested 150 samples of aggregate and aggregate-constituent products; issued 86 requests for information to economic operators; taken nine corrective actions in relation to all sorts of different products other than aggregates; recorded 71 inspections in the European Union information and communication system on market surveillance, ICSMS, which is the portal for the recording of inspections across the European Union; assessed 76 rapid exchange of information system, RAPEX, notices; and carried out the market surveillance audit in Donegal on foot of the request from the Minister.
The approach that we used is a good practice methodology set out by the European Union, and I have a link to that. We had some key learnings from our programmes and strategy so far, which are that this office needs to drive the promotion of compliance with construction products and continue to do what we are doing through industry engagement, education, enforcement and resourcing of the market surveillance of construction products in Ireland.
Mr. Butler and I are here to answer any questions.
Steven Matthews (Wicklow, Green Party)
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It is quite clear from the opening statements, plus the time that this committee spent on the Remediation of Dwellings Damaged by the Use of Defective Concrete Blocks Bill, that this is a highly technical and complex matter. The range of standards, guidance, technical guidance, regulations and inspections that are out there seem quite comprehensive. We saw and heard from people living with mica-impacted homes across Donegal, Mayo and other counties. The committee would like to know that the regimes, inspections and checks are in place now so that we do not see that happen again. There is a considerable suffering and a considerable cost for people living in those houses, and a considerable cost on the State to rectify it as well. As legislators, we would like to know that all of those checks are in place in order that we do not have a repeat of that in the future.
I will move on to members. Deputy Ó Broin suggested that because it is such a technical piece of work we are looking at, we might extend the speaking slots to ten minutes in order that we can cover it in depth. It will still leave us time for a second round. If members are with okay with that, I will suggest that we do so. Of course, members do not need to take the ten minutes, but they will be available.
For our witnesses, the ten-minute slot is for the questions and the answers. We can get written answers if they do not feel they have the information to hand to answer them.
Mary Fitzpatrick (Fianna Fail)
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I thank everyone for attending. This matter is highly technical. I come at it more from the human side. I do not envy the witnesses’ task and I hope they can help me with mine. The damaging effect that the whole mica situation had on individuals and their homes is devastating and cannot be overstated. I refer as well to the damage to confidence in construction sector generally. I appreciate all of the work that the witnesses have done to date. As the Chair indicated, we would like to come out of the committee with even greater confidence that, going forward, people can have confidence in the construction sector generally and in the materials being used. We talk about these materials, such as concrete, and hopefully it is a product of the past, however, it is still being used in every building site in the country.
I have a number of questions. Many of them are about the new organisation that has been set up under Dublin City Council as a shared services function for the 31 local authorities. I am fairly certain it was said that the NBCMSO has responsibility for the technical and formal compliance of the construction products. Is operational compliance explicitly excluded? Is that what I heard stated?
Mary Fitzpatrick (Fianna Fail)
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That is what I thought I heard. I just wanted to be sure.
I recognise that the NBCMSO has undertaken 48 reactive inspections. I might read from that that there are no proactive inspections.
Mary Fitzpatrick (Fianna Fail)
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How many of those assessments were carried out?
Mary Fitzpatrick (Fianna Fail)
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Does enforcement and prosecution fall within NBCMSO’s remit? I know it can direct, but what if they do not comply with its directions?
Ms Mair?ad Phelan:
We request information under section 11 of the construction products regulations. There are times we have to request corrective actions and issue an article 14 corrective action. All of the corrective action notices that we issued have been followed through and the product either taken off the market or brought into compliance. If that does not work, we then refer to the Minister in order to have the product taken off the market.
Mary Fitzpatrick (Fianna Fail)
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Is it an accurate statement that there is 100% compliance where the NBCMSO has identified issues?
Mary Fitzpatrick (Fianna Fail)
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Can Ms Phelan explain a bit to the committee about NBCMSO's resources and the amount of engagement that is required to achieve that level of compliance? Some 100% compliance is very impressive.
Mary Fitzpatrick (Fianna Fail)
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To what does NBCMSO contribute its success at achieving 100% compliance?
Mr. Richard Butler:
I do not know that we can say we achieved 100% compliance. There is always someone who will get through the net. We just have to be vigilant. The formal compliance is easy because it is a paperwork check. Technical compliance needs to be tested and verified. It can take time to get that done.
Mary Fitzpatrick (Fianna Fail)
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What sort of time period is involved?
Mary Fitzpatrick (Fianna Fail)
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What happens in the interim? Is the product suspended while NBCMSO is going through that testing process?
Mr. Richard Butler:
No. It is checking to see whether the product is compliant. We are assuming that the information that the manufacturer has on the tests that it did is compliant because it went through the factory control process and all that and drew up a declaration of performance for the CE mark.
Mary Fitzpatrick (Fianna Fail)
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How long does that process take?
Mary Fitzpatrick (Fianna Fail)
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I have a question for the Department that has to do more with building control. There was an opt-out facility for new single dwellings in the building control regulations of 2015. Has that been completely removed?
Mary Fitzpatrick (Fianna Fail)
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Is that still in place?
Mary Fitzpatrick (Fianna Fail)
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Was it reviewed?
Ms Sarah Neary:
One-off houses are subject to review as part of ongoing building control inspections and measures. It should be noted that building regulations apply to all works, regardless. These are the building control and administrative measures. They are subject to inspection, and they are dealt with in the same way in the building control process. A formal review of the levels of non-compliance has not been carried out.
Mary Fitzpatrick (Fianna Fail)
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Are there any plans to do that?
Mary Fitzpatrick (Fianna Fail)
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My understanding is that the report that was done under the previous Government on the defective concrete blocks included a recommendation not just that the opt-out would be reviewed for single dwellings but that the facility for an opt-out on single dwellings would be removed. Is that correct?
Ms Sarah Neary:
The panel that looked into concrete blocks and the situation in counties Donegal and Mayo did make a recommendation to carry out a review of SI 365 and its impact. It is subject to the same building control inspections around the country. There is activity in that space but a formal review of the differences in levels of compliance has not been compiled.
Mary Fitzpatrick (Fianna Fail)
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That is fine for the moment.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I thank the witnesses for both their presence and their presentations. It is important to remind us all about the impetus for us calling this hearing. The witnesses will all recall when we were undertaking our informal scrutiny of the enhanced defective blocks legislation, Aidan O’Connell from Engineers Ireland gave some pretty shocking testimony to the committee when he informed us that: "I do know certain quarries that are still producing concrete blocks and still producing material and that it is wholly unsatisfactory and they continue to do it knowing that material is wholly unsatisfactory." He went on to say: "I can also say that I have other cases where those houses have been built in recent years and they are demonstrating damage and the same material is present in both those properties." That is the same material as deleterious materials affecting homes in Donegal, Mayo and elsewhere. He also said that he believed some quarries were carrying out what he described as "side deals" with homeowners as the quarries "recognise they have a problem". He concluded his remarks by saying: "They [the quarries] are suppressing the information and some of the damage and doing some side deals with home owners." Given that we got that testimony when we were considering the defective blocks legislation and that the working group report estimated that the cost of cleaning up the mess is €2.4 billion, the witnesses can imagine the concern of the committee. What a number of us are interested in doing here today is trying to establish to what extent the kind of testimony from the likes of Mr. O'Connell, who is a respected professional engineer, and those practices are still prevalent in the industry but, more importantly, whether the compliance and enforcement regime is fit for purpose. Is it identifying those cases of non-compliance and addressing them?
I appreciate that this is technical stuff, but I ask the witnesses to treat us as if we are leaving certificate science students for the ease of explaining it to us because we and the wider public want to get beyond some of the technical information and into some of the more general processes. We want to understand the system. I am still not clear on the exact roles of the various organisations. One of my questions for Mr. Ó Coigligh relates to the fact that the Department is titled as the "notifying authority" and a range of other organisations are the "notifying bodies". There are building control sections. I want to understand in plain, simple English who is responsible for what in the chain of compliance and enforcement because that is important for us to understand.
The second point is that we want to know how widespread people in this room think these problems are. The public deserve an honest assessment of the extent to which we still believe quarries are non-compliant. I am interested to hear, preferably from the Department, if it has the information, how many quarries we have supplying the building industry. How many of those are licensed, because a non-licensed quarry indicates a particular attitude to the rule book? To what extent are quarries being inspected and to what extent are the inspections indicating a level of compliance? Does anybody in this room have a picture of what is happening across the State beyond the information that Ms Phelan and her team have given us?
Senator Fitzpatrick asked some good questions. I would like to know how many products have been removed, when they were removed and whether the suppliers of those products are still supplying products elsewhere. Perhaps Mr. Ó Coigligh could grapple with some of those questions initially and then I will pass some questions on to the other witnesses.
Mr. Feargal ? Coigligh:
I am not a technical expert myself, but I will try to give an overall picture. We are all ad idemwith what Senator Fitzpatrick said about the psychological damage and stress that has been caused. We are also all ad idemas regards the financial costs to the State. It is fair to say in general about the building control sector that significant progress has been made in recent years in reforming the operation of the sector to make sure it is fit for purpose. We are, for example, producing houses of the top tier in terms of standards and compliance with energy ratings and so on under the current reformed system.
I will ask some colleagues to come in on market surveillance and quarries. The Deputy mentioned licensing for quarries. They require planning. It has been a difficult evolution because many of them started or purported to start prior to the introduction of the Planning Act in 1964. The 2000 Act introduced rules to get-----
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I hope Mr. Ó Coigligh does not mind me cutting across him because our time is limited, but does the Department know how many quarries are currently operating in the State? Does it know the number that are compliant for planning and licensing?
Mr. Feargal ? Coigligh:
Before I get there, the Donegal audit that was produced today showed the system working. The NSAI discovered a problem. Ms Phelan has spoken about the audits and the programmatic approach to market surveillance and testing the NBCMSO is doing. The Minister requested an audit, which pointed out more room for improvement. There are still issues with compliance with paperwork. There is still more work to be done.
I will ask some colleagues to come in on the number of quarries that are operating in the State at any one time. Quarries can open and close and they can operate for different products. All quarries do not necessarily provide products for concrete blocks. It is quite a big picture. One of the recommendations from the report on the Donegal quarries is that there would be a national register. The GSI has some information on that. Perhaps Mr. McGrath could provide what information he has on that area.
Mr. Eoin McGrath:
We keep a quarry register, which was last updated in 2014. We are in the process of redeveloping that into an online database, essentially, where we can track what quarries are out there and who is producing what. At the moment, we do not have a particularly good handle on the number of quarries throughout the State. That is because quarries open and close due to market demand. Sometimes quarries are open on certain days a week or for particular materials, or they are open in response to a large infrastructure project and then they close when the project is completed.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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If we do not know the number of quarries and when they are opening or closing, we do not know if they are compliant with planning or licensing. How does market surveillance operate other than in a completely reactive way like in Donegal where there is a national scandal and people are sent in after the fact to look at it?
I want to go back to Mr. Aidan O'Connell's commentary about a quarry that he mentioned. To what extent can the officials reassure us that across the State there is visibility and, therefore, proper enforcement and compliance with quarries?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I am sure that the officials would have a level of expertise so they would know.
Ms Sarah Neary:
I suppose where a quarry produces a concrete block or aggregates that are covered by a harmonised standard then they fall under the construction products regulation, CPR, which places significant obligations on the operator to create a declaration of performance or DOP and carry a CE mark. When it comes to construction products it is a subset of all of the quarries that are in the country producing that, and that is where market surveillance, and all of the structures that come under the CPR exist. That is a subset.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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In the second round I will have questions for the other two groups of witnesses. I am trying to get a sense of this at departmental and ministerial levels. In 2017, we had the independent report on defective blocks and it does not seem to me that a wild lot has changed. In 2019, the national building control office, NBCO, was created but, as Mr. Butler has said, it is a relatively small office. Can Ms Neary tell us how many full-time equivalent building control officers operate within local authorities? Does the Department know that figure? How many of the building control officers are skilled or qualified in the specific areas that relate to the discussion we are having here?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Does the Department know how many building control officers there are? I ask because the last time I asked a parliamentary question seeking the information I was told that the Department does not keep a track of such information.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I accept that. Given the significance of the 2017 report, and the fact that we are talking about trauma and the financial cost that Mr. Ó Coigligh outlined, one would expect that the Department would have a particular interest in assessing whether local authorities are properly resourced and have the skilled staff to carry out the very important compliance work that has been outlined. Does the Department know any of that information?
Ms Sarah Neary:
There are 70 authorised officers across the State to carry out this work. While the report was carried out in 2017 a lot of work had happened before that. There were key milestones when the construction products regulation came into effect in 2013. All the work that was done on the standard recommendations, which basically bridged the gap between the standards that came from Europe and what gave additional guidance as to what was required in Ireland in order to meet those standards. A huge amount of work has been done on guidance for economic operators, builders, specifiers and all the stakeholders in the construction industry. In parallel, the role of local authorities in market surveillance was strengthened through the additional role of the NBCO, leadership and co-ordination, and the upskilling and training of building control officers and market surveillance officers. It is a work in progress and there is more to do.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I accept that. Again, I have questions for the other organisations in the final round of questions.
In terms of the Department's view and in light of the testimony albeit about a small number of cases that Mr. Aidan O'Connell gave this committee before, is it the view of the Department that we have a small problem, a significant problem or a widespread problem with non-compliance across the State?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I will discuss that because that is a report.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Does the Department have any visibility on the level of compliance or non-compliance across the State?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Does the Department other than the Donegal report have any visibility? Can Ms Neary give this committee any comfort that in her view compliance outside of Donegal, which is where we had that one report, is high, modest or poor? We have heard the testimony of one engineer who has significant experience in this field and we do not want to overstate or understate his testimony. What visibility does the Department, as the notifying authority, have about what is going on across the State?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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How do we know if we do not know how many quarries we have?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Yes. In order to say the level of inspections is high we would need to know the total number of quarries and inspections. I have not heard anybody tell me that we know how many quarries versus inspections.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Please explain in plain English the difference between the 208 and 308 quarries.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Do we know what percentage have been inspected by either the NBCMSO or local authorities in the past 12 and 24 months?
Ms Mair?ad Phelan:
When we commenced the work on the 2021 market surveillance strategy we did a very extensive desktop study on where every single hole that produces aggregates or rocks in Ireland was. We looked at the websites of the EPA and the GSI. We identified something like 1,800 of what could be termed quarries and of that 1,800 as many as 500 actively produced products, some of which are not construction products. Of that, as part of our 2021 market surveillance strategy, we visited 20% and identified the main producers of the aggregates, which go under floors, and the aggregates for blocks, lintels and concrete.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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As I am almost out of time I shall ask one last question but I will return to this matter. Of those 20% of quarries that were inspected would Ms Phelan rate the level of compliance as high, moderate or poor?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Is Ms Phelan saying that the products that are being produced are okay but the administration and paperwork surrounding those are weak?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I will ask questions in the next round of questions.
Steven Matthews (Wicklow, Green Party)
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As the next slot belongs to the Green Party I will comment. Mr. Ó Coigligh, on page 4 of his submission, said, "the Department received a notification from NSAI on 15 October last year regarding the withdrawal of a certificate of conformity". The NSAI referred the matter to the Department and I ask the NSAI delegation to please explain the process.
How did the NSAI become aware of the non-conformity of the factory production control process in regard to the product in question?
Steven Matthews (Wicklow, Green Party)
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NSAI staff go to each of these production lines in factories across the country. Are they random or timed inspections?
Steven Matthews (Wicklow, Green Party)
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Do they submit to the NSAI for auditing?
Steven Matthews (Wicklow, Green Party)
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Where a supplier submits to the NSAI the paperwork on its processes and the testing it does and the auditors find the product does not conform with the standards with which it is meant to conform, does the authority then go back to the producer and say it needs to make changes, or does it immediately flag the issue to the Department? Is there a process that is followed? When compliance checks are done, there can be a lot of instances of non-compliance that are insignificant or there may be an instance of significant non-compliance.
Steven Matthews (Wicklow, Green Party)
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It would help people watching and listening to understand the process. It would help to give confidence in it.
Steven Matthews (Wicklow, Green Party)
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I refer to the example in the Department's submission, indicating that on 15 October, there was a withdrawal of a certificate of conformity based on notification from the NSAI. I would like to talk through the NSAI process to the point where it informs the Department of an instance of non-conformity. I will then ask the departmental representatives about the steps that are taken after that.
Steven Matthews (Wicklow, Green Party)
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To be clear, was it the production control process with which with the NSAI had an issue?
Steven Matthews (Wicklow, Green Party)
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In such instances, will the NSAI contact the Department to say it questions the conformity of the production control process of one of the producers that sends it results and, therefore, that the product coming out at the end may not meet the standard?
Steven Matthews (Wicklow, Green Party)
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The issue is flagged with the Department. What steps does the Department take after receiving that notification and what is the timeframe involved?
Ms Sarah Neary:
Under Article 53 of the EU's CPR, the notified body should contact us in regard to withdrawal of certificates. At that stage, we contact both the NBCMSO and the relevant market surveillance authority in the area, which is the local authority, to alert them that a risk may occur. In the instance we are discussing, because it related to concrete blocks in Donegal and given the sensitivities and the historic situation, the Minister requested an audit to be carried out on all concrete block manufacturers in Donegal.
Steven Matthews (Wicklow, Green Party)
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That is understandable. Do the NSAI and the Department have concerns that the concrete blocks made by this producer are not up to standard, or is it just that the process in place at the moment is being questioned? Has the product been tested fully?
Steven Matthews (Wicklow, Green Party)
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What happened then? Was the company told it must modify its control process and it would then get back its certificate of conformity? Is that how it works?
Mr. Richard Butler:
The Department notified us, as the market surveillance authority, and we immediately issued a corrective action notice under section 14(1) of the European Union (Construction Products) Regulations 2013 to the economic operator informing it that it did not have a factory control certificate and, therefore, it could not sell the product under the regulations. We then visited the manufacturing facility, along with staff from the GSI to take samples. Eventually, the manufacturer went through the whole recertification process with the NSAI and got back its certificate.
Steven Matthews (Wicklow, Green Party)
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From how many entities producing concrete products does the NSAI receive control or audit documentation showing proof they are in compliance? How many such companies are in operation?
Steven Matthews (Wicklow, Green Party)
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Will Mr. Balfe explain what he means by that?
Steven Matthews (Wicklow, Green Party)
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Mr. Balfe indicated that the NSAI certifies 168 quarries and 95 concrete product manufacturers.
Steven Matthews (Wicklow, Green Party)
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Mr. Balfe said the NSAI is not the only notifying body. Does he know the total number of such bodies in the State? Do they follow a different process but with the same audit?
Ms Sarah Neary:
The Department is the notifying authority, which means we are responsible for designating notified bodies. There is an application process to go through to become a notified body. We have ten notified bodies operating in the country at this time and three technical assessment bodies. The NSAI is both a notified body and a technical assessment body. Regarding concrete blocks, the NSAI is one of the few bodies that carries out factory production control audits.
Steven Matthews (Wicklow, Green Party)
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I am finding this quite complex. I do not know whether anybody else is finding the same. I will have a think about it and may come back with further questions.
Senator Fitzpatrick referred to SI 365 of 2015, which provides for an opt-out from the certification process in respect of one-off rural housing. I understand that provision applies to approximately one quarter of all housing built in the country every year. I can guess why the opt-out was requested. For someone building a one-off house, the consideration is that he or she will live there and it will not be sold on as a product. There will not be a chain of issue in such instances. However, the provision should be considered with a little more urgency than what I hear is being applied. I thank the witnesses for their replies to my questions.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I welcome the witnesses. I will follow on from some of the previous questions. The representatives from the NBCMSO indicated that the technical compliance of products is high. What percentage of the quarries inspected were found not to meet the standards? I refer to significant instances of technical and product non-compliance rather than paperwork issues.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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There were three instances of non-compliance out of all the operators. In terms of the testing process and what happens when a product is found to be non-compliant, there has been a lot of detail given in the discussion thus far. What happens in respect of the people who have bought and used that product in construction? Does the quarry or the producer of the product notify those people? Is there any follow-up with them or any testing of homes that were built with product that is subsequently found to be non-compliant? What happens in that respect?
Part of the corrective action notice requires the economic operator to carry out due diligence. Part of the certification process is traceability and the operator must keep records of who they sold the product to for the past ten years. The operator must carry out that due diligence and it also checks its tests. All of those operators carried out due diligence and checked their previous tests. This office also had samples of the operators' construction products that we had tested previously and we were satisfied they were correct.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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The operators keep a record of who they have supplied but there is not necessarily follow-up. They are not told that there could be a problem.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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If I build homes and bought a product from a quarry that is found to be non-compliant, as the house builder, I will be notified of that as part of the corrective process. Is that what Ms Phelan is saying?
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Does the NBCMSO check, as part of the process of recertifying the product or ensuring it is compliant, that the manufacturer has done all that?
Mr. Richard Butler:
Yes. If we found something and the manufacturer changed its process, it may have to go through its factory control certification. That would probably mean going back to the NSAI or another notified body to do that corrective action. The manufacturer would also have to do all the type testing required for the product, if it was a product issue.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I will try to understand it in other terms. If I am a homeowner who has bought my home from a builder that has used a product that the NBCMSO, through an inspection or testing, has found may be defective, will I find that out? I take it I will not find out, from what Mr. Butler is saying but that the person who built the homes will find out there could be a problem. It is up to that person to decide whether to notify the purchaser or homeowner. Is that correct or have I misunderstood?
Ms Mair?ad Phelan:
The manufacturer will have carried out consistent and constant testing on a weekly, monthly and biannual basis on the construction product it produces and have records available of what it has placed on the market. With the withdrawal of these certificates, there was an inconsistency in factory production control, in that the source material, constituent aggregate, for the blocks in question was not as specified in the factory production control. The factory production control certificate had to be changed because the source material was not as specified in the certificate and it had to be recertified for that purpose. In any event all of the testing that was previously carried out was available to us. Manufacturers carry out due diligence and check stockpiles they may have for a couple of months. We have checked a certain percentage which we can go back to. They also have the records of who they sold all the products to. If they find a defect, they may have to recall the product.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Has that happened in the work the NBCMSO has done?
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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However, it could happen.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Was the substance of the very serious statements made by Aidan O'Connell at this committee earlier this year, some of which Deputy Ó Broin read out, investigated? If so, what was the outcome of those investigations?
Ms Mair?ad Phelan:
Yes, the statements were investigated. The economic operators were inspected and tests were carried out. However, they also formed part of the 2021 and 2022 market surveillance campaigns and no non-compliances were found in regard to the economic operators about whom the statement was made. We have checked it rigorously.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I have a question for the NSAI about the withdrawal of certificates of conformity. How many such withdrawals have there been under the construction products regulation?
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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That is since the NBCMSO was set up. How long has the office been in place?
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Have any economic operators been prosecuted or penalised for their actions? The NSAI referenced in its statement that it can happen.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I do not mind Ms Phelan helping but the question is really for the NSAI.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I understood from the NSAI statement that economic operators can be prosecuted or penalised.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Maybe I got that from the NBCMSO. If professionals working in the sector come across the use of or have concerns about defective materials, is there any requirement or mechanism to report it?
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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However, there is no requirement on anyone working in the sector to do so.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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In the case in which a professional in the construction sector may sign confidentiality clauses with whomever he or she is working, does that inhibit the professional?
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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In the view of the Department, the NSAI and the NBCMSO, are the processes around this sufficiently strong and robust? Are there areas on which improvement is needed and, if so, which areas? I ask the NSAI to respond followed by the Department, if there is time. If not, we can return to the question.
Ms Geraldine Larkin:
I am satisfied we have an annual check on all the manufacturers registered with us with regard to their production process. Obviously, that check is at a point in time. The criticality relies on colleagues in and out of the NBCMSO throughout the course of the year.
I am satisfied that we have an annual check but it is part of an overall system that relies on all of the checks and balances we have described.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Is the overall system robust enough?
Ms Geraldine Larkin:
On the basis of our findings and the actions we have taken, I am satisfied that, through the introduction in recent years of the European standards that I outlined, the additional requirements we have implemented in terms of the application, a notified body now certifying products before they go on the market, and the market surveillance authority, a robust system has been built from a notified body perspective.
Mr. Feargal ? Coigligh:
The committee has heard from the NSAI about increasing standards and compliance. This country has been on a journey in terms of compliance with building regulations and great improvements have been made. Even the NBCMSO, which was put in place in 2020, has upped the game. The report that the office provided to the Minister on Thursday night contains further recommendations on training of the local market surveillance authorities, which, as members have seen from today's meeting, is a complex and technical area of work, and awareness in the industry. Much of the organised industry is aware of the need to ensure reputable products are used. There were also recommendations on continuous professional development, additional resources and so on. We in the Department need to consider these recommendations with the NBCMSO. We will speak to some of the issues that Deputy Ó Broin mentioned in terms of the level of departmental awareness. We have a monthly meeting with the NBCMSO to discuss progress across these fronts, what more needs to be done and where issues are arising. The report, which was published by the Minister this morning, points to further work that needs to be done in this space, but that work will be on top of the significant improvements that have been made.
Ms Mair?ad Phelan:
I concur that we have a robust system in place and that we have a good strategy for market surveillance. Having a robust system is subject to it being adequately resourced and having properly trained and competent professionals available in market surveillance. Building control is a technical area. It is probably the first or second step and it needs to be strengthened so that we can move forward and have a system in place that we can stand over, will not be subject to changes and can verify compliance with construction products regulations. This is about people's health, safety and welfare. We have a good strategy and a robust system, but the latter needs to be resourced and strengthened and there need to be trained and competent professionals in it.
Emer Higgins (Dublin Mid West, Fine Gael)
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I thank the witnesses for attending. I apologise, as I got the opening statements but had to duck out for another meeting after being in attendance online. I thank the witnesses for sharing their expertise. This is an important topic, first and foremost because it is about the safety of people's homes. Second, the taxpayer has had to step in to compensate people as a result of the issues we are discussing. We cannot continue to have a situation where buildings are constructed with substandard materials that endanger people and the taxpayer has to step in time and again. We will likely see the latter happening in respect of apartment blocks, too.
Mr. Ó Coigligh spoke a great deal about market surveillance. I wish to understand the process better. Are the public notified of market surveillance findings? Is there a register that people can check the results of that surveillance? My next question may be for one of the other witnesses, but how many products have been removed from the market as a result of surveillance? Mr. Ó Coigligh stated that market surveillance was part of a campaign of encouraging corrective activity. How can such activity be enforced? Does the Department collaborate on corrective activity with the other bodies that are present?
My next question is for the Department and the NBCMSO. It is on a matter that we are keen to get to the bottom of and questions have been raised about it at this meeting. To the witnesses' knowledge, are there quarries still producing substandard materials or materials containing mica or pyrite?
Regarding products being taken off the market, I am struggling to understand the situation from the statements and the report. Is it primarily corrective action that has been taken? If so, how does that work? If something has been constructed with the product, how is that situation addressed retrospectively? Are there trends in the reasons for corrective actions being taken? I can understand reasons such as paperwork and other administrative elements, but are there greater trends?
Regarding the production process, Ms Larkin referred to the annual checks on registered manufacturers. I hope it is not the case, but are there unregistered manufacturers operating, meaning they would be outside the NSAI's scope, or does she believe that everyone has been captured?
Those were my questions. My first was on market surveillance. Could I get more information on that and how the encouragement of corrective activity becomes enforcement? Is there confidence that no quarries are still producing defective materials? What happens when products are taken off the market? What trends are there in corrective actions? My final question was on the annual checks on registered manufacturers.
Mr. Feargal ? Coigligh:
Today's discussion has been about having confidence that the products being produced are compliant. It is not lawful to place products on the market that do not comply with the relevant standards and methodologies for use in construction. We have heard from the NSAI and the NBCMSO about the work that has been done in recent years to improve standards. We have also heard from the NSAI about the risk-based assessment stemming from the NBCMSO. In the latter's early years, it has been focusing on the extractive industries. We have a report today that makes recommendations on further improvements. We have heard about issues with paperwork, but we have also heard bout some positives, in that any testing that has been carried out has shown that products have been compliant technically, which is reassuring. The NBCMSO referred to markets having been taken off the market. Perhaps Ms Phelan wishes to speak to that again.
Emer Higgins (Dublin Mid West, Fine Gael)
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Will Mr. Ó Coigligh explain how market surveillance is carried out and what it achieves from the end user's perspective? Is there a register that people can check to see the results of the market surveillance? How does that information get out?
Ms Mair?ad Phelan:
When we carry out an inspection, we put that inspection into the ICSMS, which is the European portal for inspections. There is no national register of construction products that are the subject of formalised standards in Ireland that people can check. People have to know the notified body for the product in question first and then check with the NSAI.
What we have learned from the market surveillance campaign in the past 18 months is that we have upped the ante in compliance. This is probably the first time many economic operators have heard of market surveillance. Now they all know we exist, it is like putting the Garda on the motorway. They know we will come back and check; they are quite aware of that. The professional bodies they deal with, namely, the professional geologists, the Irish Concrete Federation and other professional engineers, are all aware of the requirements. The good news in this regard relates to all the testing we did of the aggregate constituents, aggregate concrete blocks and everything else. They satisfied the technical requirements. It is a work in progress. Improved resourcing and training, competence and awareness are where we need to go, as well as being on the spot for reactive and proactive inspections.
Emer Higgins (Dublin Mid West, Fine Gael)
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The office has the market surveillance in place, and we have stronger legislation. Nobody has failed the production standard. We should not see a slip in that because the regulations are in place, the audits are happening, the annual checks are taking place and, up to this point, the culture has changed. Is that a fair statement?
Ms Mair?ad Phelan:
The culture is changing. We have strong legislation in place. We have had strong legislation and regulations in place for a number of years. We need people on the ground to police what is happening. The economic operators and those producing and using construction products need to know that they will be audited, checked and inspected and that there will be consequences for any non-compliance. That is the message we are giving out as part of our inspections and what we are doing. We are carrying out information days for economic operators and explaining exactly what we want to see when we inspect their quarries.
Emer Higgins (Dublin Mid West, Fine Gael)
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Moving to the corrective actions taken so far, what have the reasons for and trends behind them been?
Mr. Richard Butler:
When we get notified, whether the factory control certificate is approved or if it was in relation to type testing or something like that, we issue a 14.1 informing them not to sell the product because they do not have a factory control process or we may give them a list of stuff they have to do. It is the first point of engagement. Then we follow up with a site visit, we engage with economic operators and we tell them how or what they need to do to bring the product into compliance if we can help them with anything. They may have to go through a re-audit of the factory control process or recertification to get to that point to get the product back on the market.
Emer Higgins (Dublin Mid West, Fine Gael)
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What of the annual checks?
Emer Higgins (Dublin Mid West, Fine Gael)
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Yes, okay.
Ms Geraldine Larkin:
The manufacturer must enter a contractual relationship with the NSAI. We have 95 clients covering 168 quarries. Those are the 95 clients we do annual audits with. It is only those that are contracted with us. There are other notified bodies manufacturers may also choose to contract with. The ones that are contracted to the NSAI are the ones we are looking at annually.
Emer Higgins (Dublin Mid West, Fine Gael)
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That is 95 clients.
Emer Higgins (Dublin Mid West, Fine Gael)
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Okay.
Emer Higgins (Dublin Mid West, Fine Gael)
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I thank the Chair.
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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There are two excerpts from the witnesses' submissions I want to draw attention to. They set the scene for the committee. Ms Larkin's submission includes the sentence "The cause of these problems are deleterious materials which are naturally occurring minerals found in rock deposits in Ireland". That is the core issue, pardon the pun, that has brought us to this. Only the banking scandal can compete when it comes to the cost to people and to the Exchequer. This will cost billions. The amount we will end up paying because of the regulatory failures in this State is incalculable.
Mr. Ó Coigligh set the context that what led to the audit was "the withdrawal of a certificate of conformity of the factory production control for aggregate concrete masonry units from a block manufacturer in Co Donegal". I understand the block manufacturer being referred to is the quarry and manufacturer responsible for the vast majority of the defective blocks used in the affected homes in Donegal. Was that quarry tested as part of this audit? Was there an extensive test of that quarry as part of this audit?
Steven Matthews (Wicklow, Green Party)
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To whom is that question directed?
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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It is for the NBCMSO.
Ms Mair?ad Phelan:
It is not an accurate statement about the quarry. The aggregate was tested by the GSI when we got the factory production control certificate notice of withdrawal. The product was taken off the market while we were carrying out the corrective action or going through the corrective action notice and it was subsequently recertified with the factory production control certificate. However, it is not the manufacturer the Deputy thinks it is.
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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At a recent conference in Donegal, a range of international experts presented their findings. One was Dr. Andreas Leemann. I am sure the witnesses will accept that Dr. Leemann is an international expert in this area. He carried out tests on a number of blocks and found the amount of sulphates was seven to ten times the amount allowable under EN 12/620. I am certain the panel will agree that is extraordinary. I repeat there is a quarry in Donegal that I think is what led to this audit and which is responsible for the vast majority of defective concrete block homes. Has that quarry been extensively examined? Can the panel say that quarry has a clean bill of health today?
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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What were the specific findings on the quarry I am referring to? I will not name it but I think the officials know which one it is.
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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Mr. Butler is satisfied that in terms of deleterious materials that may be in that quarry-----
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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This is extremely alarming. What has led to this crisis, per Ms Larkin's submission, is the existence of deleterious materials. That has given rise to one of the biggest scandals in the history of this State. Deleterious materials were present and the levels were not in line with established European and Irish regulation. I am asking about the quarry that led to this audit. Has there been extensive geological examination? The second, related, question is what geological expertise does the NBCMSO have? What geologists does it lean on to assist with this?
Mr. Eoin McGrath:
Deputy Mac Lochlainn is slightly off track there. The quarry in question that led to the specific audit is not the quarry that the Deputy is thinking of. It is a separate quarry. We were called on 17 October 2021. There was a request for technical assistance. GSI essentially is the State's geologist, so if any arm of the State requires a geologist, much as the Attorney General is called on for legal advice, we are contacted for geological advice. We went there and we sampled particular stockpiles that were available, one of which had certification from the NSAI as a material for concrete and one of which did not have certification. The material that did not have certification came back as completely compliant with all the standards. The quarry operators on the ground informed us that they had the geologist's report and certification in train and we received that approximately a week later. The material that was in the geologist's report concurred with our own findings.
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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I want to be clear. I am not going to name the quarry, but it has repeatedly been publicly identified. There is one quarry in Donegal that is primarily associated with the vast majority of defective blocks. We are talking about thousands of public and private homes in Donegal. Has the quarry been extensively examined from a geological point of view to try to understand what has led to this absolute scandal and to prevent anything like that happening again?
Mr. Eoin McGrath:
We have research projects under way at the moment to try to identify the complete damage mechanism, because we are aware that there are multiples deleterious materials present across most rocks in Ireland, and in Donegal and in the rest of the north west. Identifying the accurate damage mechanism is key to understanding the remediation options. That research is under way at the moment both with a commercial research company and a proposed consortium of international researchers as well.
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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Anyone who has not seen the testimony of Andreas Leemann to the committee can watch it. Likewise, the testimony of other experts from Canada, Norway and the UK is available. I understand they will be assisting the GSI. Everybody accepts now the resource provided by international experts and people who we want to help us in Ireland. Dr. Leemann has said that the tests he has carried out demonstrates seven to ten times the permissible level of sulphur under EN 12/620. I am sure Mr. McGrath agrees that is astonishing, even though the regulation has been in place since 2002 and these tests were on blocks that were manufactured after 2002.
In terms of quarries and manufacturers across the entire State that manufacture concrete products, can Mr. McGrath satisfy the public that the failings that led to this scandal - the faulty quarries and products - are a thing of the past and that there is extensive geological oversight being carried out to ensure this will not happen again? Do we need more people and more work in this area?
Mr. Eoin McGrath:
In terms of market surveillance, I will have to defer to my colleagues in the NBCMSO. As the State's geologists, we respond to any request from any arm of the State, be it a local authority, a Department or our colleagues. We are always available to go in on the ground and assess the information that is available, as we have done across Donegal.
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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The Chair uses the phrase "mica" and refers to a "mica crisis" but what we are starting to understand in Donegal anyway is that the chief offender is pyrrotite, based on the emerging evidence.
This is a question for Ms Larkin. How can it be that the NSAI came forward with IS 465 but did not allow for pyrrotite to be considered in terms of forming a prognosis cure to what has emerged?
Ms Geraldine Larkin:
If we look at IS 465, we see that the original IS 465 had two purposes. The first was to develop a test methodology to identify primarily mica and pyrite. In fact, the test currently developed by the technical committee does identify the presence of pyrrotite and other sulfates. The second part of IS 465 outlines what happens after we find a deleterious material, whether that is mica, pyrite or pyrrotite, in terms of the remediation of the property and its structure. The provisions of IS 465 dealt with pyrite and mica, because at the time that was the scientific information available to us in terms of what was causing the damage. The challenge for us now is to look and understand, through the research that has been previously mentioned, the extent of the damage that might or might not be caused by these other substances that have now been identified.
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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I have a brief supplementary question in that regard. People are very anxious that the current review being undertaken by the NSAI would lead to a conclusion and give people confidence that they can have a standard that can help them to rebuild their lives and homes. What sort of timeframe is the NSAI working on to conclude the review and to make strong recommendations to the Government?
Ms Geraldine Larkin:
The work on concluding that standard is critically dependent on the research that has been previously mentioned. That is going to take time. It is likely to take the remainder of this year and next year. It is likely to be 2024 before the standard is finalised. We are hugely conscious of the impact on and the financial cost to all homeowners and the State and also on the many professionals with whom we engage, who are trying to grapple with this issue. We have committed that if at any point during the course of the research work it is possible for us to produce interim findings or standards, we certainly will. Right now, the timeline we are looking at will take us out to 2024. That is not what I want to be able to say to the committee today. I would much rather be able to say that I could deliver this to all those affected homeowners early next year, but that is not the case. The research is going to take time and we must be sure we make the right recommendations to homeowners.
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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I promise that this is my final point. In terms of the issue of pyrrotite, the international evidence is that it can impact even strong concrete structures such as foundations. Right now, it is not recommended that foundations would be tested in Donegal, which is predominantly affected by pyrrotite. How can that be? How can there be a recommendation not to test foundations when the international evidence is that an excessive level of pyrrotite leads to internal sulfate attack? The problem now is that there is a sense that the science is catching up with the scheme. In terms of IS 465, which was in place, I can only speak with authority about Donegal, engineers have started to challenge it on the ground and to say they could not in conscience make recommendations, as they do not believe the science was right. Nobody stepped forward to defend IS 465. Therefore, it was completely undermined in terms of its credibility. People are being asked to rebuild their homes and they are not convinced that the science is right. The evidence that is emerging suggests that the science that supposedly underpins the existing IS 465 is not right. That causes me great concern. We are asking people not to test the foundations and telling them there is no need to do that, even though international evidence suggests that in the presence of excessive levels of pyrrotite we really should test the foundations. That is our problem with these timelines. We are asking people to undertake a scheme next year but people have lost confidence already and they will lose even more confidence unless we address the issue. The testing of foundations must be clarified urgently so that we can progress.
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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I thank the Chair; I appreciate his forbearance.
Steven Matthews (Wicklow, Green Party)
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We are into the third round now so I ask members to indicate. Deputy Ó Broin wishes to come back in. I just want to clarify a point for myself. I said people looking in want to have confidence we have a robust structure of testing and regulations in place so we do not see this again. Returning to the testing, somebody must submit their certificate of conformity to the NSAI for their product after running the tests they run on it. Am I right on that or that they must certify this product meets the standard, based on the tests?
Steven Matthews (Wicklow, Green Party)
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Okay. Is there some kind of heading like "Test for Deleterious Materials" that sets out what materials should be looked for? Is there a stress or strength test and if it fails we say this could be caused by a deleterious material and we will therefore check for it? Is there a list of deleterious materials products that should be tested for?
Steven Matthews (Wicklow, Green Party)
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Okay.
Steven Matthews (Wicklow, Green Party)
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All right. I lack the knowledge on this. Sulphates include the likes of pyrite and pyrrhotite. They are classified as sulphurous materials.
Steven Matthews (Wicklow, Green Party)
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And mica?
Steven Matthews (Wicklow, Green Party)
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Is mica on the list to test for?
Steven Matthews (Wicklow, Green Party)
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Okay. I have one last question on this. Ms Wylde wishes to come in.
Ms Yvonne Wylde:
On the mica, there are other ways of identifying it. It is not called a mica test but there are other ways like the petrographer's report, the geologist's report and the percentage finds. The control over the percentage finds is where the mica would be found. They are not called mica tests, as I said, but there are other tests that establish if mica is present. If there is an indicator maybe you go to the next level but there are definitely tests there around establishing those materials.
Steven Matthews (Wicklow, Green Party)
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All right, and there is a certain level of sulphur or deleterious material that is kind of acceptable to have as it is naturally-occurring. Therefore, there are levels that are acceptable. When was the last time we saw concrete product either from a quarry or a producer that was tested and contained levels above the acceptable standard for sulphurous materials? I am aware NSAI only covers 95 clients and it could have been another body but when was the last time it was notified of such a product?
Mr. Se?n Balfe:
A manufacturer identifying material to be used for the manufacture of concrete must carry out tests on it. In carrying out those tests, if it identifies material as unsuitable because of the level of sulphates it will not use it. That is what we are finding in our factory production control audits.
Steven Matthews (Wicklow, Green Party)
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Do we then run into a dead end of tracing back how this ended up in here? If the manufacturer does not notify the NSAI it is not aware of it so how do we ensure we can trace it back in the supply chain?
Mr. Se?n Balfe:
We look to see the material the company is manufacturing the blocks from conforms to EN 12/620, which concerns aggregates for use in manufacture of concrete products. That standard calls up a suite of tests that must be carried out and there are limits for various materials in that which must be conformed to before the company can use the aggregate to manufacture the block.
Steven Matthews (Wicklow, Green Party)
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Okay. I am trying to give people out there confidence we have a whole range of safety nets to stop this material ending up in people's homes. Let me get this clear in my head again. If somebody's product fails to meet the standard for the level of sulphurous materials in it, will they notify the bodies present of that?
Steven Matthews (Wicklow, Green Party)
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They will not, okay. How then do we know how that stuff got into the product without our testing where it came from? Our guests probably cannot answer that because they are not aware of it. Is this a concern to anybody here? We have a product that did not meet the standard because a deleterious material is present. We get rid of that and we do not have to tell anybody about it, but where did it come from in the first place?
Steven Matthews (Wicklow, Green Party)
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Who is the obligation on to inform a geologist to go and test where our source product came from?
Steven Matthews (Wicklow, Green Party)
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It is the manufacturer.
Steven Matthews (Wicklow, Green Party)
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It would be good if Mr. McGrath could. I am just trying to understand. I am not trying to catch somebody out here; I am trying to understand the chain.
Steven Matthews (Wicklow, Green Party)
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Yes, maybe junior certificate students.
Steven Matthews (Wicklow, Green Party)
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Great, okay.
Mr. Eoin McGrath:
Sulphates are SO-24 ions that attach. That is gypsum. The transition from sulphides to sulphates is the major pyrite problem. A sulphide transitions to a sulphate, which changes the calcium carbonate into gypsum, leads to swelling and that is why we get the pyrite issue. If you are producing material to standard recommendation, SR 16, SR 18 or SR 21, it is incumbent on you to have a professional geologist look at your materials. They have to do what is called knowledge of the raw material, which is an assessment of the actual deposit. That means going to the quarry, assessing the quarry and identifying heterogeneities, perhaps, within the quarry. Sometimes we see a quarry where there is one lithology on one side of the quarry and another lithology on the other. One might be suitable for concrete production and the other not. That should be reflected in the geologist's report. The second part of that report is a petrographic assessment of the product, which is the actual aggregate, the crushed aggregate. That is your 40 mm, your 10 mm, your fines content or whatever is going to be put on the market for use in concrete for SR 16, as an example. That is where the role of the independent geologist comes in. To fulfil that role you must be essentially a chartered geologist and for SR 21 you must be on a specific register maintained by the Institute of Geologists of Ireland, which is the professional accreditation body. The register is available on its website.
Steven Matthews (Wicklow, Green Party)
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Okay. Forgive me if I get this wrong again but with this product that has failed the test, the obligation is on the manufacturer to then go back and notify their source quarry or the manufacturer has to get a geologist to check their source product.
Mr. Eoin McGrath:
The manufacturer has to get a geologist before they produce any aggregate that is going to be used in concrete products. That is prior to a block being made. Once the rock goes into a block I know nothing else about it. Once it is not rock anymore my expertise is done. The geologist has to come in and make a statement this particular rock is suitable for use in concrete, use in subfloor fill or use in mortar, those being SR 16, SR 21 and SR 18.
Steven Matthews (Wicklow, Green Party)
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We are depending on the quarry management skills there because Mr. McGrath said there could be one part of the quarry that is suitable for this product and does not contain deleterious materials or contains levels that are okay and other parts of that may not. We are depending on the quarry's management of its aggregate, fines and so on.
Steven Matthews (Wicklow, Green Party)
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Thus in theory, we could have quarries that have this aggregate that may not be suitable for certain concrete products and through mix-up, poor management or quality control, or whatever it might be, that aggregate could end up in a product that fails to meet the standard. That is a possibility, is it not?
Steven Matthews (Wicklow, Green Party)
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Okay. I thank Mr. McGrath. Mr. Butler is indicating.
Steven Matthews (Wicklow, Green Party)
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Okay. I thank Mr. Butler. Deputy Ó Broin wanted to come in.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I thank the Chair and thank everyone again for giving us so much of their time. It is certainly very instructive for us. I wish to focus back in on inspection and enforcement. As I understand it, in our building control system for the building process, while the responsibiltiy for compliance certificates lies with the developer - and therefore is not unlike what Mr. McGrath has described about the manufacturer employing the geologist - we have a level of independent inspections by our local authorities.
When products are being certified by the NSAI, does it have the authority to independently inspect or lab test materials or is it wholly dependent on the lab tests that are provided by the manufactures? If it has the power to independently inspect, does it use it, how often does it use it and what does that reveal?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Would it be fair to say that is kind of almost like a paper audit of the systems that the manufacturer has in place?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That is a power that the NSAI does not have at all.
Mr. Se?n Balfe:
Not for this type of product. Construction product regulating has what they call an assessment and verification of constancy of performance, AVCP, system attestation - we are getting into technicalities here. It identifies five different classes of product. These products fall under system 2+, they call it, which is factory production control. For that category of product, we just do a factory production control audit. If it is 1+ or 1 for a cement manufacturer, for instance, we can have it tested.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Again, in plain in English, regarding the one that the NSAI does not have the authority to do independent testing on, what kinds of products would that cover?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That means, for example, for any concrete block manufacturer, the NSAI does not have the capacity and does not undertake independent lab tests of the material. It is solely reliant on the tests that are provided by the manufacturer.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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In terms of the NBCMSO, when it becomes involved, for example, like in the report into Donegal, is it able to secure independent lab tests of the materials? To what extent does that give it visibility on what is happening?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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With respect to the Donegal report of the quarries that were inspected, how many independent lab tests or independent geologist examinations were requested by the NBCMSO?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Mr. Butler used the phrase "We tested". The NBCMSO would have secured independent lab tests for all of the material. Obviously, the report was only published this morning. It is quite a long report, so we have not had a chance to go through it. How many quarries were inspected for the Donegal report?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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How many fall under that?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Seventeen out of how many? Would it be several hundred?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Just in Donegal. I apologise. In Mr. Butler's exchange with Deputy Mac Lochlainn, the Deputy had query on deleterious materials. Unfortunately, I did not get to write down Mr. Butler's response quickly enough. He kind of indicated that the NBCMSO's test would not necessarily identify those. Did I understand that correctly?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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The work of the geologists would identify that but in the block itself. Is there a way or test that can identify deleterious materials once the block is manufactured or is that something that can only be done at the geologists' stage?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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It is not required.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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The NBCMSO could not investigate that even if it wanted to. The only reason I am asking the question is because there has been so much focus on defective block.
Mr. Eoin McGrath:
I might be able to clarify that as well. In this particular situation with the quarry that prompted the audit, as Deputy Mac Lochlainn requested it, when we took samples of the blocks, one of the questions was from which particular stockpile of material had this block been manufactured. We can essentially retro-engineer that. We can split it open and do a petrographic analysis on the sediment or the aggregate and we can check which of the particular stockpiles it is from. When the stockpiles are extremely distinct from each other, for example, where there is perhaps a quartzite and a volcanic rock, it is relatively simple to do.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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That is very helpful.
Mr. John Wickham:
Basically, market surveillance will look at the essential characteristics that are prescribed in the declaration of performance. We produced a guide on that just to make it easier for manufacturers to understand, and also for end users. There are particular performance limits that are set out in standards that NSAI has produced. Those would generally be performances that are required when choosing products suitable for their end use when they are brought into the buildings.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I will go back to the NSAI. While it cannot do independent lab tests of the block, it can obviously do independent lab tests of the material that goes into the block – of the aggregates, etc. Is that correct? Does it have the authority to do that?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Can it?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I will explain the reason I am asking that. I refer, for example, to building control in Dublin city. Dublin City Council inspects 100% of all multi-unit developments. It does not have to do so. The protocol requires about 15%. This means that there are two checks. There are the assigned certifiers, the design certifiers, but there is also the local authority. It would seem that in a preventative manner, if there was a capacity for the NSAI and the other notified bodies to at least have a capacity to do some independent inspections, that might be a very valuable thing. That is just a comment.
I am keen to understand the architecture of this. If I get it right, the Department is a notifying authority. It then appoints notified bodies. I think Mr. Ó Coigligh indicated there are ten of those. I would like to know who they are, either at committee or by way of a note to committee afterwards. Why do we have ten? What is the difference between them? Five technical assessment bodies were also mentioned. I would be interested to know the relationship between those.
I have a question for Ms Phelan. In terms of our building control authorities and the NBCMSO, Ms Neary mentioned a figure of 70 authorised officers. In terms of the capacity of our building control authorities, do they have enough staff? Do the staff both in the NBCMSO and in the local authorities have the kind technical expertise needed? I have met some building control officers. They are planners or engineers by profession. They would not have the expertise in geology. It is not just about the numbers of staff, but do they have the technical competence to be able to carry out some of this building product surveillance work, which is very different from the assessments of the building process? Perhaps we can start with Ms Phelan and then go to Mr. Ó Coigligh and Ms Neary.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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In this particular area.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Ms Phelan is indicating that there are not necessarily the skills or competence. Is there the requisite number of staff? Seventy sounds like a lot until it is divided among 31 local authorities, some of which have a significant amount of activity. Is that a sufficient number of people to undertake the work that we are talking about?
Ms Mair?ad Phelan:
Of those 70, some of them are planners and some of them are water engineers. They may not be in building control. They may be other professions. The authorisation is given by the chief executives of each local authority and many people have different authorisations for many pieces of legislation that they get automatically-----
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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How many full-time building control officers do we have in the local authority system? Is Ms Phelan saying it is fewer than 70?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Do we have a number?
Mr. Feargal ? Coigligh:
As I have said, we have been on a journey. There is more to be done. The report on Donegal calls for more resources. There are commitments in the programme for Government to examine the need to establish a national building control authority to bring about that level of expertise. It is clear that there are particular technical skills required in the market surveillance area. The issue is how best to aggregate those skills in the State. There are issues around the employment and retention of staff in local authorities across all fields. This is a challenging area but we will take on board the recommendations in the report and the commitments in the programme for Government and determine what more needs to be done in this space. In fact, a review of Housing for All that was published a few weeks ago also points to the need for a national building control system. The point is made in the in the report, we are hearing it in this room as well and it is taken.
I will let Ms Neary respond to the question on notified bodies and technical assessment bodies, but I stress again, as Ms Phelan said, that this is a Single Market issue. There is a layer of EU law in place to facilitate the Single Market and the movement of goods, and also to provide assurances to citizens across the EU that products purchased within the EU are safe and appropriate for use. Some of the architecture and terminology can sometimes sound a little bit clunky because are taking those EU structures and overlaying them onto our own systems.
Ms Sarah Neary:
The Department is the notifying authority and alongside the Irish National Accreditation Board, INAB, we designate notified bodies based on an application process. Up until 2019, the NSAI was the only notified body in the country. In the context of the CPR, a notified body can come from any member state. A notified body in France, for example, could operate the factory production control for Irish companies. That is just a feature of the EU system. Those French notified bodies would have an equivalent designating body like ourselves, a notifying authority, in France. In that way, there is a clear chain or line of responsibility back.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Which ten bodies are involved?
Ms Sarah Neary:
A number of Irish companies would have relied on notified bodies in the UK when that country was in the EU. Since Brexit, a number of certification bodies that operated in the UK have established themselves in Ireland and applied to us, as the notifying authority, for notified body status within the EU. That is why we have gone from one to ten such bodies in a relatively short space of time.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Does that mean they are responsible for the setting of the standards and for the certification of the products?
Ms Sarah Neary:
No. They have very clearly and narrowly specified functions which can include factory production control and product testing. There are three different types and a combination of those two. They are stipulated in the primary legislation and the CPR. In each standard that is developed at European or CEN level, the level of third-party intervention for each construction product is identified. That is contained with the standard. Mr. Balfe mentioned the system 2+ for concrete products and aggregates. It is unique in the standards for concrete blocks that a choice is given to member states as to which level applies. It can either be no third-party intervention or a 2+ intervention, which is factory production control. Ireland Inc. has taken the option of a third-party intervention in a 2+ system and that is embedded in our national provisions in the standard recommendation. In general, it is set by Europe. Each member state has to follow that.
Mr. Feargal ? Coigligh:
Just to say in respect of the European context that we will be bringing the experience we are having in this really difficult space, as Deputy MacLochlainn pointed out, back to the EU by way of feedback. We will be telling our colleagues that there are European standards which apply right across the EU that need to be adjusted because of the experiences we have been having in Ireland. The research we have pointed to will be fed back. We will be sending our expertise back to the EU in order to improve standards right across the EU, not just here.
Ms Sarah Neary:
Our own staff in the NSAI are actively involved in the CPR acquisprocess at the moment. Indeed, the CPR is being reviewed at European level to strengthen the system.
The Deputy also asked about technical assessment bodies, TABs. These relate to construction products that are not covered by a harmonised standard but the manufacturer wants to label those products with a CE mark. That is where TABs come in. They deal with non-standardised products. There is a facility to CE mark such products.
Steven Matthews (Wicklow, Green Party)
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Deputy Higgins is next.
Emer Higgins (Dublin Mid West, Fine Gael)
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I just want to follow up on the questions relating to the Donegal quarries. We are at a bit of a disadvantage here because the report was only published earlier today. It runs to 61 pages and includes quite hefty appendices. All I have had time to study in depth is what has been published on www.gov.ie. It clearly states that following receipt of a notification from the NSAI of the withdrawal of certification in October of last year, the Minister requested the NBCMSO, in partnership with Donegal County Council and GSI to carry out a market surveillance audit of all quarries in County Donegal. Was that the brief or was it confined to relevant economic operators? How was that determined? The figures we are talking about here are far in excess of the 17 and the nine that are cited in the report.
Emer Higgins (Dublin Mid West, Fine Gael)
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So the audit was not of all quarries in County Donegal, which is what is stated on the Department's website-----
Emer Higgins (Dublin Mid West, Fine Gael)
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That should be clarified in the documentation that is in the public domain. I thank our guests for that information.
Steven Matthews (Wicklow, Green Party)
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Deputy O'Callaghan is next.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I have a few short questions for the NBCMSO. I ask for an indication of how many people working in the construction industry or members of the public have contacted the office with concerns, issues or complaints since the office was set up?
Ms Mair?ad Phelan:
I do not have the figure off hand but we are consistently getting queries and complaints with regard to building control and market surveillance. We identify those involved, check it out and check the compliances. It is quite consistent and we have probably had 20 complaints or queries relating to building control or market surveillance in the last year. People contact us for different reasons. It could be related to the construction of an apartment block or a single house or it could be related to a particular product.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I am interested in products in particular. I am not looking for an exact figure but for an indication as to whether construction products produce a lot of complaints or queries.
Ms Mair?ad Phelan:
Any issues or complaints that we received relating to blocks were legacy issues and were, therefore, outside our scope. Anything that we can deal with is addressed but things like legacy issues are outside the scope of the office. Anything that is prior to 2013 or not being placed on the market at this moment is outside our scope.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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To date since the office has been set up, that has not produced issues in terms of market surveillance and products that NBCSMO has been able to follow up on or there have been outcomes-----
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I will return to the statements that were made by Aidan O’Connell to this committee earlier in the year. Just from the witnesses’ reply, they said they were thoroughly investigated and no issues were found. That is correct, is it not? I just want to get my head around this. There is obviously a considerable gap between his statements, direct experience and direct knowledge, which I assume were absolutely made in good faith, and the outcome of the NBCMSO investigation. I am just trying to get a sense of it. Why could there be such a gap between a competent, experienced engineer and his direct experience and view that defective materials from quarries have been going into homes recently and the NBCMSO’s processes in terms of not finding any issues?
Ms Mair?ad Phelan:
All I can say is that we investigated the particular economic operators he referred to as part of our 2021 market surveillance campaign. Their products complied in full formal and technical compliances. On foot of this committee’s deliberations, we carried out market surveillance again and found that they were compliant. As such, I cannot comment on anything prior to that. As I said, if anybody has any details, testing or anything else, they should send it to us and we will investigate it.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Just so we understand and know this, does that mean that there is not a possibility that defective materials were used between the testing that the NBCMSO did in the previous campaign and then the subsequent testing? Is that possibility very low? Where there is a very strong view that defective materials are being used, are those testing processes robust enough that they are sufficient to ensure that is not the case?
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Can Ms Phelan explain “continuous testing” a bit more?
Ms Mair?ad Phelan:
There are certain essential characteristics. There are weekly checks, monthly checks for others, half-yearly checks and checking the constituent aggregate, the source, and the constituent of the blocks as well. It is all part of the factory production control process. When the notified body would come and check that, it will check that as part of its intermittent audits.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I have a final question around laboratory testing. There was a well publicised case in the UK in terms of fire cladding that was tested in a laboratory setting and was found to be compliant. However, the conditions were not real-world conditions, if you like. Once that fire cladding was exposed to wind conditions, the material then was found to be highly flammable, whereas in a laboratory controlled setting, it was meeting the test requirements in terms of being nonflammable. Is there any risk that laboratory testing is not matching real world conditions for other materials and products, for example, some construction materials and ongoing and prolonged exposure to wet conditions or anything else that might result in serious issues? Is that a possible issue or is Ms Phelan satisfied that the laboratory testing is sufficient to safeguard against any real-world conditions that could affect construction materials?
Ms Mair?ad Phelan:
A construction product, as I said, may comply with the requirements of the construction products regulations, but that does not mean it is fit for its intended use in the circumstances and the conditions in which it is to be used. For example, a block that might be suitable in west Wicklow with a nice fine climate – the sunny south east – may not be suitable in the most highly exposed area in Europe on the west of Ireland. That goes for all products. It is then the designer’s responsibility to check the declaration of performance and the essential characteristics and then check the circumstances and conditions they are using it in. They may have to adapt that product and look at how they will render that product and the external rendering. They have to go back then to their SR 325, which is the bible for masonry construction in Ireland under Eurocode 6. It can be fit and comply, but then it must be looked at in use. That is the performance in use test.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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It can meet the standards and gets through all the different processes, laboratory testing, certification, market surveillance office and all of that, but be the completely wrong product to use in certain conditions. While we can take some reassurance that there are these standards and processes in place, that is a level of reassurance, but it is not the end of the story. If the products are used in conditions that are not suitable, then there are potentially very serious problems.
Ms Mair?ad Phelan:
That is why professionals need to be involved in the building process to check all of that. There are performance in use tests carried out on individual products and individual components and how they are constructed. There are performance in use tests carried out for timber frame where they have actually burned the building and checked. The construction product and how it is used in construction are two different pieces of legislation.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Just to finish on this, can Ms Phelan tell us a bit more about the performance in use tests? The NBCMSO has no role in that, so who has a role in the oversight of performance in use tests?
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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The local authority.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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The national building control office would then have a role in that.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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This is my final question. Are there enough resources in that and enough oversight or is that an area that needs more attention?
Ms Mair?ad Phelan:
There are times they do an Agrément certification system on it. They will carry out the test then and get an Agrément certificate and that will demonstrate compliance for performance in use for what they have actually tested it for. However, if it is used in a different situation, it may not comply. A professional must check the end use, circumstances and conditions in which it has to be used.
Mr. Richard Butler:
As the market surveillance authority of the national building control, we have the advantage of seeing products being manufacturer certified and then actually coming onto site and being built. We provide training to all the building control authorities and we run continuing professional development, CPD, days even for all of the external experts too who are not building control professionals so they can view as well. We are basically there to inform and educate the sector.
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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There are 180 registered quarries in Donegal. The NBCSMO audited 17 quarries that are related to the manufacture of concrete blocks. However, there are 180 quarries in Donegal. Just to be clear, the NBCMSO has audited fewer than 10%. Is that fair to say? Is that correct?
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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It is just important. There is a perception that all quarries in Donegal were audited. There are 180 quarries in Donegal; 17 were audited for the reasons that Ms Phelan has explained. I want that on the record. I will ask this question again regarding the quarry that was responsible for the vast majority of the defective concrete blocks in Donegal. Was that quarry one of the 17 audited? I prefer not to name it but I think the witnesses know to which I am referring.
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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It was sample tested. Was it one of the 17 quarries that were audited?
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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It was one of the 17 quarries that were audited; that is important. That is clear so. In terms of the EN 12620, there is the standard recommendation, SR 16 process. Under that process, a geological and petrographic assessment is required on an ongoing basis. Once the first assessment is done, it is required every three years from then on. I want to be clear on this point. Of the 17 quarries that the Department audited, were these geological and petrographic assessments looked at for each quarry, including the one I am most concerned about?
Mr. Eoin McGrath:
I guess that is a question for us Deputy. Yes, we did. That is the first thing we do. We have essentially a methodology for when we are looking at quarries when we are requested to provide technical assistance. The first thing we do is look for the geologist's report. We go through that and evaluate it to see if it makes sense and reflects what we know of the geology based off our own mapping of our aggregate potential products and then, based on that, we assign a priority for inspection to a particular quarry. By way of example, one of things we would look for would be caveats in the geologist's report and whether the geologist identifies it as a significantly variable lithology or if they identify areas of trouble. If that is the case, that would be somewhere which obviously is of higher priority for a visit than some place where the geologist says the same material is consistent across the geology.
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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There is a profound concern in Donegal that the geological and petrographic assessment that would have been carried out for the quarry which we are most concerned about, needs to be re-evaluated and assessed. From a geological and petrographic perspective, is Mr. McGrath happy that that particular quarry has a clean bill of health at this point or does he feel it needs further examination?
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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This next question is for Mr. Feargal Ó Coigligh. We are talking about a quarry here that sadly is the source of the vast majority of the defective concrete blocks in thousands of public and private buildings, and nobody can tell me today if there has been an independent examination from a geological and petrographic perspective. Am I right in saying that as we speak here today, almost in the year 2023, we do not have that information? Is that fair to say?
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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I will phrase it in this way. Will Mr. Ó Coigligh assure this committee that he or the Minister will, following the meeting today, order an examination of this particular quarry in terms of the geological and petrographic assessment to be carried out and that when this is done it would be independently and urgently examined, including getting access to that quarry to do that? That is the least the thousands of people affected deserve. Lives have been destroyed here in one of the biggest scandals in the history of the State. Surely that assurance can be given? If it has not been done already, can Mr. Ó Coigligh give assurance it will be done after today?
Mr. Feargal ? Coigligh:
The Department has to operate within the regulations that are laid down. We are talking about placing products on the market and the standards which operate and we will operate within that. In terms of going in to a non-producer, I cannot comment and probably need to take advice on that. We will consider it.
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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Will Mr. Ó Coigligh revert back to the committee when that advice has been received?
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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That is fair enough. Mr. Ó Coigligh will appreciate what I am trying to do here is to get assurance for people that we will learn the lessons of what led to this disaster and make sure they do not happen again. When he gets that advice, will he revert back to the committee and advise on what action can be taken? Is that fair enough?
Mr. Feargal ? Coigligh:
We will come back to the committee but I will say our experience of pyrite, defective apartments, and the mica issue has led to huge transformation and improvement. We can see this in the work in the National Standards Authority of Ireland, NSAI; in the National Building Control and Market Surveillance Office, NBCMSO; and the good work that is being done on the standards we can now stand over. The recommendation is that further investment, training, and resources is needed in this space and this is all part of that continuous journey.
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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Will you revert back around that particular quarry that left the vast majority of homes the way they are?
Pádraig Mac Lochlainn (Donegal, Sinn Fein)
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I appreciate that.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I thank Mr. Ó Coigligh for his patience with us. There are some of us who, while we acknowledge much has changed, are aware there are also things that have not changed. While it is slightly tangential to today's discussion, I have a very large building in my own constituency that has been fully occupied without a single completion certificate for many years and there does not seem to be any prospect of enforcement action or prosecution on the building control aspect of this 48-unit apartment block. It is still fighting a planning retention issue. That suggests to me, notwithstanding the significant changes both in terms of build control amendment regulations and the other things we were discussing, there are still significant opportunities for those, and it could be a very small number of individuals or companies who, if they want to break the rules, face very few consequences. I make that point because it should not be lost.
Rather than back and forth questions, it would be great if a couple of bits of information could be provided to the committee from whichever organisation can do that. It would be really good for this committee to know how many full-time equivalent building control officers we have in the State. That would be a helpful thing for us to know in our deliberations. I would also be interested to know, given that many of our building control officers are planners, engineers, sometimes roads engineers etc, if there is any sense of what the skills deficit is in the kinds of specialisms required to make some of the judgement calls in inspections for building product surveillance. Is it possible to get some sense of what that deficit is like?
I also think it would be good if someone could share with the committee the total number of products that have been withdrawn. If it were possible to have a list of those, that would be even better. If some of those have been reintroduced following re-compliance that would be useful.
For the representatives of the NSAI, I fully understand that the review of IS 465 has to be evidence and science-based. I accept that. I have raised this previously with the Minister but given the very large volume of applications in the current scheme that are stuck in stage one and cannot progress to stage two because of what we understand are conflicts between the standard and the engineer's reports, that proposition of interim technical guidance would be enormously helpful both to the local authority as well as to families. I know that also has to be grounded in science and evidence but it is not beyond the realms of possibility that if we are looking at a timeline of 2024 for the review of IS 465, it would be reasonable if it were possible for the NSAI to prioritise those interim technical guidance notes for the local authority. Otherwise, there are about 500 or 600 applications just stuck and going nowhere and our understanding from talking to engineers and officials is that interim technical guidance could unstick many of those and potentially move them into stage two. That would be enormously important because obviously we are eagerly awaiting the Department's regulations in terms of the enhanced scheme so that should lead to a significant increase in applications. If we have the same ratio of applications stuck before they progress, this could become a very big issue. I am not looking for a comment on that from Ms Larkin but just to emphasise the importance of that.
I address the last question to Mr. Ó Coigligh. It would be great to get an update on those regulations for the new scheme. I know it slightly stretches the scope of this discussion but they were meant to be ready at the end of this year. Will they be ready then or are they likely to slip into next year?
I have a final question for Ms Phelan. How does a building control official know whether a block that is fully compliant with the standard and is certified by the National Standards Authority of Ireland, NSAI, can be used in one climate and not in another? Are there technical guidance documents, for example, under the Building Control (Amendment) Regulations, that set that out clearly or is it something that they acquire? It is one thing to have a standard, the block meets the standard and the paperwork proves that, but for building control officers, even if they are inspecting those buildings, whether they are one-offs or estate builds, is that something that is set out in the technical guidance documents or is that something that needs to be revisited so that our building control officials have the competence to make those kind of judgment calls?
Ms Mair?ad Phelan:
There are different building components in construction. For instance, if one is using a concrete block, one needs to check the declaration forms, the essential characteristics and check to see the suitability for the particular wind-driven rain index and weather in the location one is putting it in. It is also dependent on the exterior render that one would put on that as well. There are a couple of things in play here. One will not know anything by looking at a block. One will have to check the declaration of conformity for CE markings and the safety information use.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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In terms of that specific issue which Ms Phelan raised, which I thought was very important, that even when one checks all of that a block that meets the standard may not be fit for purpose for use in certain locations or certain buildings, is that set out for building control officers in technical guidance documents? Ms Neary wants to get in on it as well.
Steven Matthews (Wicklow, Green Party)
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Ms Neary wants to come in on it.
Ms Sarah Neary:
Just to support Ms Phelan in what she is saying, we probably would have talked about this previously. In order to get a building right, one needs the right products, the right design and the right workmanship. The building regulations set standards around performances for buildings and that affects both the design and the construction aspect of it, and the products used.
The technical guidance documents in some situations give specific explicit guidance for non-complex buildings and they also refer out to standards. As Ms Phelan mentioned, SR325 is the Irish provisions for the use of masonry construction. It is the Irish guide to using the eurocodes, which apply all over Europe, for masonry construction.
In SR325, there are areas around durability and that durability ties back in to the product and the aggregates that go into the product. Everything comes together in SR325, which is a standard published by NSAI, and then the regulations rely on that.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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In terms of the regulations for the enhanced scheme, I can test Mr. Feargal Ó Coigligh's patience.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Okay. As with the other two questions on the full-time equivalents and the withdrawn products, communication could be given to the committee because all committee members would be interested to know. If they will not be ready this year, which we suspect they will not, it would be good to know what the revised timeline for their approval by the Minister would be.
Steven Matthews (Wicklow, Green Party)
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I thank Deputy Ó Broin. To clarify who is coming back with what, there is the question on how many full-time equivalent building control officers. Are these all departmental? Can the Department supply the answers to these?
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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Is it the same on products withdrawn, because that is a function of the Minister?
Steven Matthews (Wicklow, Green Party)
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Can the total number of products withdrawn be answered by the Department as well?
Steven Matthews (Wicklow, Green Party)
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As I do not have anybody else indicating to ask any further questions, it leaves me to thank the officials for their time today. When I said at the start it was complex and technical, I was not lying. It is a difficult area. I thank the officials for their patience and expertise, and their assistance to us in improving our understanding of the system.
I note Mr. Ó Coigligh's comments about the improvements that have been made and the ongoing improvements and the continuous monitoring. That will give reassurance to the public who are watching out there that lessons from the past have been learned and there is rigorous regulation, testing and inspection and continuous improvement in place. I thank the officials.