Brendan Ryan (Labour)
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I move amendment No. 1:

In page 7, line 34, after "2000" to insert ", provided that an environmental impact statement for the purposes of this Act shall be carried out by a person who does not benefit financially from the approval of the project to which it relates".

I do not know how many Members have read environmental impact statements. I have read too many and have become increasingly sceptical because I have never read one that found that a project would harm the environment. I am a little sceptical about the fact that every project turns out to be of minimum impact, because human activity has an impact on the environment.

In my unfortunate absence from the House from 1992 to 1997, I did a great deal of work with the clean technology centre in Cork Institute of Technology. During that time I spoke to people from overseas, many of whom suggested that an EIS should be carried out by someone who does not stand to benefit financially from a positive outcome to the project. Most of the environmental impact statements I have read have been written by the consulting engineers for the project. I do not suggest for one second that people are being bought off. It is never as simple as that, but their perceptions and judgments, the weight they give to various factors and the way they present matters are invariably affected by their view of the project.

The profession of which I am a member is full of people of integrity who would not take on projects if they believed they were not ethically acceptable. I am sure there are exceptions, as there are in all professions. That said, if there is a requirement for an environmental impact statement, the sensible approach is to require it to be done by an individual or body who, as our amendment suggests, does not stand to benefit financially from the approval of the project to which it relates. I am happy to leave the detail of how this should be worded to Report Stage.

James Bannon (Fine Gael)
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I support my colleague, Senator Ryan. A strong element of independence is needed. This is a good amendment.

Martin Cullen (Waterford, Fianna Fail)
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By way of background, I have carefully studied all the amendments carefully, some of which will help to improve the Bill. The environmental impact statement is, first, a statement. The assessment is by the authorities and the public which I know can be very subjective. I agree with the Senator in many respects. If there are ten lawyers in a room, they will give ten opinions different from the one the client wants.

Brendan Ryan (Labour)
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We do not have two Attorneys General.

Martin Cullen (Waterford, Fianna Fail)
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We have to have some basis for operation, good organisations to deal with it and very good transparency. Other EU member states have the same issues in addressing this. The Planning and Development Regulations 2001 set out the detailed provisions in relation to environmental impact statements and are based on the requirements in EU Directive 85/337/EEC, as amended, which provides that a developer should supply the relevant information to the consent authority which carries out the assessment, as does the public.

Brendan Ryan (Labour)
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I want to give an example of what developers can do. The issue of noise arose on a project around Cork Harbour. A background test and an assessment of the increased level of night-time noise were carried out. The noise level was said to increase from 14 to 15 decibels, which sounded like a minuscule amount. However, the scale is log long which means 15 decibels is ten times higher than 14. Neither was that critical and it has not caused a huge problem but they omitted to refer in the EIS to the fact that the scale was log long and that one increment actually represented a tenfold increase in the same way that the Richter scale for earthquakes is log long. Therefore, a Richter scale measurement of 8 is ten times larger than a Richter scale measurement of 7. That sort of judgment will be nuanced when the person giving it is in the employ of the developer. When I spotted this in the particular case, I noted that they were telling the truth but that it was nuanced.

The problem arises where a local authority is the planning authority and in favour of a particular development, to which there are local objections. Can I mention Carrickmines Castle without causing enormous repercussions? I do not want to talk about the particular case which is before the courts. However, in such a project how can people be happy that there is an element of independence in the evaluation of the impact on the environment if, for instance, the local authority is in favour of what is happening?

While he Minister will not accept my amendment, he has responded reasonably to it. I will find other fora in which to pursue it.

Amendment, by leave, withdrawn.

Brendan Ryan (Labour)
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I move amendment No. 2:

In page 8, line 13, after "2000" to insert ", provided that an activity which is an established activity pursuant to this definition shall cease to be an established activity on the fifth anniversary of the enactment of the Protection of the Environment Act 2003".

Martin Cullen (Waterford, Fianna Fail)
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There is no difference between the Senator's view and mine on this issue. His amendment would come into effect five years from now in 2008. In the Bill I propose a much shorter timeframe up to 2007. The IPPC directive provides that established activities must be IPPC licensed by October 2007. The Bill provides for this deadline to be met in two ways. Established activities are newly licensable by virtue of the directive. The power given to the Minister in section 82(4) of the Bill to make orders to bring established activities into the licensing net will be used to achieve a target date of October 2007. This will be done in an orderly, phased manner, as was done in the 1990s when IPC licensing was successfully introduced.

Subsections (10) and (11) of section 82 require that as regards established activities in respect of which licences are already enforced under the 1992 Act, those licences will be examined by the EPA for compliance with the directive and the agency will take appropriate action to ensure full compliance in that regard by October 2007. This action can include carrying out a review of the licence, which the EPA is mandated to do, amending its conditions or declaring in writing that no further action is required. There will be differences among the licences, probably on account of some of the more traditional activities in which some companies may have been engaged.

The Bill, as drafted, would ensure that the benefits which accrue from being an established activity in terms of the phasing in of licensing will end earlier than is proposed in the amendment. The proposed amendment is not necessary. Perhaps the Senator wanted to tease out the issue.

Brendan Ryan (Labour)
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It was an error on my part. I withdraw the amendment.

Amendment, by leave, withdrawn.

Brendan Ryan (Labour)
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This is not one of the sections on which there is considerable argument. It states: "'emission limit value' means the mass, expressed in terms of a specific parameter, concentration or level of an emission, or both a specific concentration and level of an emission, which may not be exceeded during one or more periods of time:". I cannot follow this definition. A mass expressed as a concentration is incorrect technically. Generally, one expresses a mass as a level, not a concentration.

I do not want to play "I know more than you" games as I probably do not. However, unless the definition has been transposed from an EU directive, in which case we would be stuck with it, it should be examined by somebody with a reasonable degree of technical skill. While the phraseology appears to be poor, it is possible that it is long established. Even if that is the case, it deserves to be examined, given that a mass expressed in terms of a specific concentration is meaningless. Either one has a mass or a concentration. While a concentration can be used to determine a mass, a mass cannot be expressed in terms of a concentration.

Martin Cullen (Waterford, Fianna Fail)
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The text is an exact transposition from the directive and has been used to be consistent. As I am not a chemist, I am not as qualified as the Senator in this regard.

Brendan Ryan (Labour)
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I am not particularly well qualified either.

Martin Cullen (Waterford, Fianna Fail)
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I am not being facetious. I take the Senator's point on the Bill's definition of an emission limit value. The EPA will be required under the new Part IV to include emission limit values in IPPC licensing conditions. In practice, the EPA is generally doing this already. Obviously, therefore, it has a measuring system available to it. We could insert a more intelligible definition only to find ourselves out of step with the EU directive.

Brendan Ryan (Labour)
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In what language was the directive first written? I have the feeling this definition could have been the victim of a translation from one or more languages. I am not suggesting we insert the French version.

John Dardis (Progressive Democrats)
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It is known as recycling.

Question put and agreed to.

Section 6 agreed to.

SECTION 7.

James Bannon (Fine Gael)
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I move amendment No. 3:

Martin Cullen (Waterford, Fianna Fail)
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During Second Stage and in conversation with colleagues before coming to the House today, I pointed out that this is a very technical Bill. By its nature, some of its language is technical. In fairness to the officials who drafted the text, they endeavoured to make it as understandable as possible. Committee Stage provides us with an opportunity to tease out issues to help us understand the Bill.

In tabling the amendment, I am sure the Senator was not aware of some of the consequences of his proposal. As proposed, the amendment is not appropriate as it would go far beyond the intention of the directive as it will be applied in the other EU member states. I repeat that the legislation needs to be consistent with the directive and the legislation introduced by other member states. In other words, we should act in a manner consistent with what is happening in all other member states and should not do anything which would make it more difficult to operate and meet the terms of the directive.

The amendment would link BAT, the most up-to-date technology, irrespective of whether it was practical. It would not achieve a proper balance between environmental protection, which is my aim, and what is economically and technically feasible. We have got this balance wrong in the past. My officials and I have given much thought to ensuring that in striving to ensure we introduce the best available technologies, which is a major innovation in the Bill, we also take economic considerations into account. The definition of BAT for the purposes of integrated pollution prevention and control is set out in Article 2.11 of the directive and is reproduced in the Bill. We should follow this approach.

Rory Kiely (Fianna Fail)
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Amendments Nos. 4, 5 and 37 are cognate and may be discussed together by agreement.

James Bannon (Fine Gael)
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If possible, I would like to discuss them separately.

Rory Kiely (Fianna Fail)
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That would be difficult as the amendments are cognate. Nevertheless, the decision lies with the Senator. Is it agreed that we discuss them together? Agreed.

James Bannon (Fine Gael)
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I move amendment No. 4:

In page 13, line 12, to delete "costs and".

Costs should not be a factor when determining improvements in the quality of the environment. Several references place undue emphasis on the question of cost and should be deleted. I should like to hear the Minister's views.

John Dardis (Progressive Democrats)
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I raised this issue on Second Stage. I cannot agree with Senator Bannon. We have to have regard to cost. The original BATNEEC referred to "not excessive costs", which was used as an opt-out, certainly by local authorities at some points. I refer, for example, to the pollution of the River Liffey by sewage treatment plants. That reference was used as a type of refuge or an excuse for not doing something that should have been done.

The Minister spoke earlier about the type of technology used and I agree with him in that regard. This provision cannot be open-ended. We cannot say that there cannot be some regard for costs. Perhaps I am doing Senator Bannon a disservice, but nobody would say we should tell farmers that they must install a pollution control system which will be so expensive that it will put them out of business. It would be better not to have the activity rather than adopt that attitude.

The proposed new section 5(2)(b), to be inserted in the 1992 Act, refers to "taking into consideration the costs and advantages, whether or not the techniques are used or produced within the State". I am not sure about the distinction between where we are now and where we were with BATNEEC. We now have best available technology, but previously we had best available technology at not excessive cost. We still have regard to cost in the Bill and I am not clear on the distinction or how this is more or less restrictive than what existed previously. I would be grateful if the Minister would illuminate that area for me because I am somewhat confused about it.

Mary Henry (Independent)
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Senator Dardis and Senator Bannon made good points, but we have gone quite far already in examining costs because the term "under economically and technically viable conditions" is used in the Bill. Do we need to insert another reference to costs? As is often the case, people constantly plead costs. The Bill refers to the techniques being reasonably accessible, but something that is enormously expensive could not be described in that manner. The Minister could consider telling people that if something is expensive, they do not have to get it. However, it could be desperately important that they do obtain it.

Martin Cullen (Waterford, Fianna Fail)
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I appreciate the thrust of Senator Bannon's amendment and I appreciate his intention with regard to the environment. Senator Dardis hit the nail on the head and almost answered the question he posed. I want to be absolutely consistent with the directive because I want to maintain the competitiveness of our economy against those of our European partners. We would all accept that European environmental standards are very high. That is something to which Ireland aspires and we will be supportive of that in our own role in developing these directives.

Article 2.11 of the IPPC directive provides the definition of available techniques. The definition makes it clear that costs of techniques should be taken into account in the determination of BAT, and this is also repeated in annex 4 of the directive. I made the point that if we do not follow the directive we will force applicants and holders of IPPC and waste licences to apply best available technologies, irrespective of cost. That could not be allowed to happen because it would have significant effects on the ability of Irish industry to compete and would ultimately lead to job losses and to industries relocating out of Ireland to other European countries. We need a balanced approach to environmental protection. We must strive for high environmental standards and the Bill's provisions – some would say they go too far – make significant progress in this regard. We must also have regard for the economic reality in the marketplace, however, and the need for a level playing field across the EU.

John Dardis (Progressive Democrats)
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Leaving aside the cost aspect, one of the effects of amendment No. 4 would be to remove the obligation to use technology regardless of whether the techniques are used or produced within the State. That is an important statement—

Martin Cullen (Waterford, Fianna Fail)
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Yes.

John Dardis (Progressive Democrats)
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—because it could be used as a refuge or an opt-out in that people would say if it is not available within the State, they should not have to use it. That should not be the case.

Rory Kiely (Fianna Fail)
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Is the amendment being pressed?

James Bannon (Fine Gael)
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No, but I agree with the sentiments expressed by Senator Dardis.

Amendment, by leave, withdrawn.

Amendment No. 5 not moved.

Section 7 agreed to.

SECTION 8.

Rory Kiely (Fianna Fail)
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Amendment No. 6 is in the name of Senator McCarthy. Amendment No. 7 is cognate and it is proposed to discuss amendments Nos. 6 and 7 together, by agreement. Is that agreed? Agreed.

Michael McCarthy (Labour)
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I move amendment No. 6:

In page 15, paragraph (a), line 4, after section to insert "3B or".

The proposed new section 3B allows the Minister to amend the First Schedule to the Act in certain circumstances. The approval of the Oireachtas should be required where such a wide power is conferred, rather than, as proposed in the Bill, simply informing it of that conferral.

Martin Cullen (Waterford, Fianna Fail)
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In considering this amendment it might be helpful for Senators if I outline the background to the proposed new section 3B. Section 7 of the 1992 Act enables the Minister to amend the First Schedule to the Act, which contains details of the activities to be licensed and their thresholds. This can only be done, however, after positive resolution of both Houses. The new section 3B, therefore, is designed to bring a small and limited level of flexibility into the system. It empowers the Minister, in certain specified circumstances, to make regulations, should the need arise in future, to further amend the First Schedule to the Act of 1992 without a positive resolution of both Houses.

It is important that I set out these limited circumstances for the Senators. They are: in paragraph (a), the adoption of an Act by the European Communities that would render the operation of the Schedule and section 82 non-compliant with that Act – an EU requirement, which must be complied with in this regard, would, in any event, have already been subjected to the new Oireachtas scrutiny arrangements; and, in paragraph (b), the making of an amendment which would not involve any deviation from the principles or policies of the Schedule and section 82. Here we are talking about technical adjustments and corrections which must be consistent with the decisions of the Oireachtas as set out in the Schedule to the Bill, which we will consider later.

Section 3B gives the Minister a limited and reasonable power to amend the Schedule. All other cases of amendment would require a positive resolution of both Houses. I am advised by the Attorney General's office that the proposed section does not involve an unauthorised delegation of power to a Minister. It gives a reasonable level of flexibility and accordingly I do not propose to accept the amendment.

Michael McCarthy (Labour)
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I will not press the amendment but I will pursue this again. It is advisable that where such a far-ranging power is conferred, the Oireachtas should have a greater involvement.

Amendment, by leave, withdrawn.

Amendment No. 7 not moved.

Section 8 agreed to.

Section 9 agreed to.

SECTION 10.

Rory Kiely (Fianna Fail)
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Amendments Nos. 8, 9 and 10 are related and it is proposed to discuss them together. Is that agreed? Agreed.

James Bannon (Fine Gael)
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I move amendment No. 8:

In page 15, paragraph (a), line 15, to delete "€3,000" and substitute "€5,000".

Martin Cullen (Waterford, Fianna Fail)
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I am happy to accept two of these amendments. While I would like to accept the third I am advised it would be legally unwise to do so. Regarding the substitution of €5,000 for €3,000, there is a constitutional limit on fines for summary convictions. My advice from the Attorney General is that €3,000 is as high as the legislation can safely go on this. Accordingly I cannot accept this amendment for that reason. I would be happy to accept it but I am told it would not stand up.

I am happy to accept the proposals to increase the maximum fine for conviction on indictment to €15 million and to increase the maximum daily fine for continuing offences to €1,000 and I agree to those amendments.

Amendment, by leave, withdrawn.

James Bannon (Fine Gael)
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I move amendment No. 9:

In page 15, paragraph (b), line 16, to delete "€13,000,000" and substitute "€15,000,000".

Amendment agreed to.

James Bannon (Fine Gael)
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I move amendment No. 10:

In page 15, paragraph (c), line 18, to delete "€600" and substitute "€1,000".

Amendment agreed to.

Section 10, as amended, agreed to.

Section 11 agreed to.

SECTION 12.

James Bannon (Fine Gael)
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I move amendment No. 11:

In page 17, line 38, to delete "2007" and substitute "2005".

I propose to bring the date back to 2005 because there is plenty of time to deal with this. Line 6, page 16, refers to activities commencing on or after 30 October 1999, so we are halfway through and there are no benefits in extending the time to 2007.

Martin Cullen (Waterford, Fianna Fail)
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This amendment goes back to the first discussion on this issue I had with Senator Ryan, though Senator Bannon is coming at this in a different way. I cannot accept the amendment because Article 5.1 of the directive requires that all established activities operate in accordance with the directive not later than eight years after the directive comes into effect. This period expires on 30 October 2007 and the provisions of the Bill will ensure that that deadline is met.

Mary Henry (Independent)
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I move amendment No. 12:

In page 18, line 49, to delete "plan" and substitute "or hazardous waste plan".

I tabled this amendment because while I realise the definition of a waste management plan includes a hazardous waste management plan, it might be wiser to separate them in the context of the Bill. As far as I am aware, a hazardous waste management plan is monitored all over the Republic by the EPA, while waste management plans come under the county councils. This amendment seeks to put greater emphasis on the hazardous waste management plan.

Martin Cullen (Waterford, Fianna Fail)
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We may be at cross purposes. This amendment makes a point already covered by the Bill. The definition of a waste management plan is in section 5, page 10, line 18, and includes a hazardous waste management plan. Such a plan will be taken into account when licence applications are considered, along with waste quality, water quality and other waste management plans. The proposed amendment therefore provides no additional benefit to the Bill and the point made is already included in the Bill. I know it is complicated.

Mary Henry (Independent)
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I thought we should make such a serious issue separate.

Martin Cullen (Waterford, Fianna Fail)
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That is a valid point and that is why it is in the Bill.

Amendment, by leave, withdrawn.

James Bannon (Fine Gael)
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I move amendment No. 13:

In page 20, line 15, to delete "such" and substitute "toxic and environmentally dangerous".

Martin Cullen (Waterford, Fianna Fail)
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It is not feasible for me to accept this amendment, although I appreciate the Senator's thinking. As the text stands, it is clear the EPA must be satisfied that emissions will not contravene standards for effluents or their treatment, which may be prescribed under section 26 of the Local Government (Water Pollution) Act 1977.

Adding the words proposed may appear to the casual reader to give added emphasis, which is what the Senator is clearly trying to do, to the nature of the effluents concerned. However, we must deal with legalities in drafting legislation and the amendment adds nothing in a legal sense to the current text. Regulations under the relevant section of the 1977 Act were made in 2001, covering 14 dangerous substances likely to be of significant risk to health or the environment. Those include pesticides, solvents and metals with toxic, persistent or biocumulative effects.

John Dardis (Progressive Democrats)
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I sympathise with what Senator Bannon is trying to achieve, which is an objective shared by the Minister. However, the effect of adopting the amendment would be to reduce the standard rather than increase it. The Bill mentions effluents but it does not specify whether they are hazardous or not. If one adopted the "hazardous" approach one could have a situation where something was not hazardous and might be allowed.

James Bannon (Fine Gael)
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They are listed in the Local Government (Water Pollution) Act and should be listed here.

Martin Cullen (Waterford, Fianna Fail)
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They should not. We want the language in the Bill to be legally effective. These issues are dealt with under other legislation. The framing of this Bill covers everything we want to cover.

Amendment, by leave, withdrawn.

Rory Kiely (Fianna Fail)
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Amendment No. 36 is cognate on amendment No. 14 and they will be discussed together.

James Bannon (Fine Gael)
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I move amendment No. 14:

In page 20, lines 38 to 40, to delete "or, where that is not practicable, generally to reduce".

This amendment will remove waffle from the Bill. The sentence in question is longer than necessary.

Martin Cullen (Waterford, Fianna Fail)
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It is not practical to accept the amendment. Its effect could be to close down activities as no licensable activity could operate unless it produced no emissions. That might be a desirable objective, in principle, but in practical terms it is a non-runner. The title of the IPPC directive mentions pollution prevention and control. There is, therefore, an implied recognition that there will be emissions and that we must control them. There is an implicit recognition that all processes produce emissions in one form or another.

The objective of public policy, through the application of BAT and other measures in the Bill, is to prevent or eliminate emissions, where possible and, if that is not possible, to ensure they are effectively controlled to protect and enhance the environment. IPPC licensing is about continuous improvement in environmental performance and reduction in emissions where it is not practicable to prevent or eliminate an emission. BAT will work to minimise them and their impact on the environment.

Amendment, by leave, withdrawn.

James Bannon (Fine Gael)
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I move amendment No. 15:

In page 23, lines 36 and 37, to delete "neither that person nor any other relevant person" and substitute "that person".

There is nothing to explain who the relevant person in question might be. The Bill should be clearer about this. It states the person is fit and proper if "neither that person nor any other relevant person has been convicted of an offence under this Act or the Act of 1996 prescribed for the purposes of this subsection". I would like an explanation of the phrase "any other relevant person". It is unnecessary to include it in the Bill. Can one person be held accountable for the actions of another?

Mary Henry (Independent)
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Whatever about the relevant person, I am delighted this provision is included in the Bill because it will spare us all from getting letters about appalling people with terrible reputations who are just about to build something next to the letter writer's. I can now refer the writers to the Bill and if the object of the letters is not an appalling person under the Bill, there is nothing I can do about it.

Martin Cullen (Waterford, Fianna Fail)
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It is not possible to accept this amendment because it would significantly reduce the powers the EPA needs for enforcement and introduce an unnecessary inconsistency between the IPPC and waste codes. The proposal would limit the application of the fit and proper person requirement to applicants for and holders of licences and transferees. This would be totally ineffective in the case of corporate bodies where persons other than the applicant companies, be they directors, the company secretary, managers or similar officers, effectively are in control of the operation. That is the point Senator Henry is making. The Waste Management Act 1996 has an identical provision on fit and proper persons and regulations under that Act ensure corporate bodies are adequately dealt with. That is what I am ensuring here. It is common sense that similar provisions should apply across the IPPC and waste codes.

Amendment, by leave, withdrawn.

James Bannon (Fine Gael)
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I move amendment No. 16:

In page 32, line 35, after "area", to insert "or neighbouring counties with jurisdiction".

A person can be on the border of a county which the functional area should recognise. The Bill states "a planning authority in whose functional area the activity is or will be". As a problem could arise in a neighbouring county, it is important that the affected local authority can act in such a situation.

Martin Cullen (Waterford, Fianna Fail)
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In considering this amendment we should be clear about the purpose of the relevant subsection. The requirement on the applicant to notify the planning authority in the functional area in which the development will be located is to ensure the authority is aware of all development proposals in its area and the possible implications for development control. This is consistent with section 91(6) of the Bill under which the authority must maintain a register on IPPC activities in its area.

The notification is not for the purpose of advising about any possible emissions from the activity. This is because the planning authority is precluded under section 99F of the Bill from placing conditions relating to emissions in a planning permission for an IPPC licensable activity. IPPC licences deal with emissions from activities across whatever local authority areas might be affected and the EPA is the designated national authority to control and regulate such emissions. The point made by the Senator is dealt with by the EPA and does not take into account any particular local area but deals with it across the spectrum.

The notice provisions contained in the subsection, which are supported by regulations which require site notices and publication of a notice in a newspaper circulating in the district in which the activity will be carried on, provide adequate notice of IPPC proposals to interested parties. Accordingly, I cannot accept the amendment.

John Dardis (Progressive Democrats)
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The intention is laudable. It would be desirable that other local authority areas would be cognisant of the potential for pollution that might impinge on them but there would be a huge knock-on effect if the amendment was accepted. It could logically be argued that if a person was applying for planning permission for a house bordering a neighbouring local authority area, there would be an obligation on him or her to apply for planning permission in two areas. The amendment could be extended to apply to other activities which would not make sense. The subsection only deals with the activity, not its effects. If the local authority in Kildare discharges sewage into the River Liffey and it eventually reaches Dublin, there is nothing to preclude action by Dublin or the EPA against Kildare to stop the activity.

James Bannon (Fine Gael)
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An activity or development might affect several acres over two counties. Under the Bill, an applicant would only have to notify one planning authority whereas my amendment would require notification to authorities in the relevant area. A development may cross county boundaries.

Martin Cullen (Waterford, Fianna Fail)
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If there are two different authorities involved, the applicant has to approach both of them in any event.

James Bannon (Fine Gael)
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There is a grey area in that regard. A person might get away with notifying only one of the local authorities concerned. Requiring the person to notify the two authorities closes a loophole in the Bill.

Michael Kitt (Fianna Fail)
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I agree with the point made by Senator Dardis. If an activity is confined to a particular local authority area, one should apply to that authority. In relation to waste management plans, regions have been established already. I live in the area subject to the Connacht waste management plan, to which the EPA has agreed. I accept that regional plans are a good idea but, in relation to activity, I understood that applications should be made to the relevant local authority or authorities, as the case may be. That is my understanding of the Minister's comments.

Martin Cullen (Waterford, Fianna Fail)
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I do not wish to be argumentative and I understand precisely the point Senator Bannon has made. However, the IPPC licensing process has nothing to do with the application to the planning authority, which is a separate issue. The matter to which the Senator referred is dealt with by the EPA, which is not concerned with the planning boundaries but may look across the entire country if it wishes. The Senator's amendment is directed at the wrong target by referring to the planning authority, which does not deal with the issue. The EPA, which deals with that issue, does not have a jurisdiction in terms of a local planning authority area.

James Bannon (Fine Gael)
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Does the applicant apply to the local planning authority, which, in turn, notifies the EPA?

Martin Cullen (Waterford, Fianna Fail)
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The EPA deals with the IPPC licences, not the local authority. Anything in relation to emissions is covered by the IPPC licensing process. Planning matters are the responsibility of the local authority, which does not deal with the issue to which the Senator refers.

James Bannon (Fine Gael)
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I was trying to be helpful.

Martin Cullen (Waterford, Fianna Fail)
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I can appreciate how we might arrive at cross purposes.

Amendment, by leave, withdrawn.

Michael McCarthy (Labour)
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I move amendment No. 17:

In page 34, lines 42 and 43, to delete "shall have an absolute discretion to" and substitute "may".

I am against the concept of absolute discretion. I believe it creates bad law and results in absolutist decision-making. It is relevant to recall Lord Acton's letter to Bishop Creighton in which he said that power tends to corrupt and absolute power corrupts absolutely. I regard this as an important issue and I hope the Minister will take my amendment on board. I am not suggesting that every time an organisation refuses an oral hearing, it should be dragged through the courts. I sympathise with the EPA in this regard but I also feel it should act reasonably, as every other organisation is required to do. I hope the Minister will see the logic of this amendment and accept it.

Martin Cullen (Waterford, Fianna Fail)
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I wish to deal with this amendment in two ways. The Senator's proposed wording is not as clear as the text of the Bill, which is far more definitive. There is also a value in maintaining consistency between the IPPC and waste codes. The "absolute discretion" in the Bill mirrors exactly the provision in section 42(11) of the Waste Management Act 1996 in relation to a decision on the holding of an oral hearing concerning a waste licence. I propose to maintain consistency rather than the approach suggested in the amendment. However, I am giving new powers in the Bill for people to request oral hearings and strengthening the entire oral hearing process.

The Bill has to be seen in the round, in terms of maintaining consistency. The Senator's amendment seeks to change a permissive power for the EPA to hold an oral hearing, "shall have an absolute discretion", to another permissive power, "may have a discretion". I am maintaining consistency but, in another part of the Bill, I am bringing in new powers whereby people will have the right to request an oral hearing.

Michael McCarthy (Labour)
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I move amendment No. 18:

In page 35, line 9, after "decision" to insert "and of the reasons for the decision".

When the EPA refuses to hold an oral hearing, it should give its reasons in the interest of proper administration, among other considerations. For example, if an applicant is refused planning permission for a dwelling, a fairly detailed letter of explanation is issued by the planning authority. People expect that level of transparency and accountability. My amendment is intended as an avenue of such transparency and accountability and I hope the Minister will accept it on that basis.

In relation to the new section 87(10), the time for challenge runs from the date on which the decision is made to refuse a licence. While I did not put down a formal amendment in that regard, I suggest to the Minister that the period should run from the date on which the decision is notified. I hope he will consider that as well as my amendment with regard to giving clear and explicit reasons.

John Dardis (Progressive Democrats)
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People should have to state reasons for their decisions, whether such decisions are by a bank or a local authority or other body. I believe I am correct in stating that recent planning and development legislation requires An Bord Pleanála to give reasons for its decisions. In the interests of consistency, it is desirable that some provision of that nature should be included in the Bill.

Mary Henry (Independent)
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Is it not the case that reasons for a decision must be given under the Freedom of Information Act in any event?

Michael Kitt (Fianna Fail)
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It should not be necessary to invoke the Freedom of Information Act. I agree with Senator McCarthy that reasons for decisions should be given by local authorities, An Bord Pleanála and other bodies, including the agency referred to in this Bill. I hope the Minister will accept that proposition.

Martin Cullen (Waterford, Fianna Fail)
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Already, where there is a decision for or against an IPPC licence, there is an obligation to give reasons for the decision. Senator McCarthy's amendment is intended to require that, in similar manner, reasons should be given for refusal to hold an oral hearing. In the interests of openness, I am happy to accept the amendment.

James Bannon (Fine Gael)
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I move amendment No. 19:

In page 35, line 16, to delete "as expeditiously as may be" and substitute "within 3 months".

The licence should be given within a period and that period should be stated after an oral hearing. This is a delaying tactic. It is important to specify a period when the licence will be given. I suggest that it be given within three months.

Martin Cullen (Waterford, Fianna Fail)
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There are already various provisions, in both the 1992 Act and the 1994 licensing regulations made under that Act, which put time limits on various aspects of the licensing process. These include, under section 87(3) of the new Part IV, an eight-week time limit on the EPA to issue a proposed determination from the date of receipt of all relevant information. This is extendable only with the agreement of the applicant.

Under the 1994 licensing regulations, there is a four-month time limit on the EPA to issue a final decision where objections are received, starting at the end of the period for objections. These can be extended in complex cases by the agency.

Analysis of the agency's performance in 2001, the latest year for which full information is available, showed compliance with the statutory obligations in terms of processing applications. Delays in processing licences occur in the supply, by applicants, of all information necessary to assess their proposals fully.

The agency receives licence applications which often involve considerable technical complexity, public interest and importance for the environment. These considerations must be balanced against the need for an efficient decision-making process. The current legislative framework provides this balance. Accordingly I do not propose to accept the amendment for the outlined reasons, which are more than fair and working well.

James Bannon (Fine Gael)
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Is the Minister giving a guarantee there will not be undue delays?

Martin Cullen (Waterford, Fianna Fail)
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I have already stated that consideration by a planning authority of an application is generally limited to eight weeks and I have told the Deputy that there is an eight-week time limit on the EPA to issue a proposed determination from the date of receipt of all relevant information. It can extend it only by agreement with the applicant.

James Bannon (Fine Gael)
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It is important that a licence should be given within a period and the period should be specified. For far too long we have seen delays in several areas of Government such as in that of grants, particularly in the agricultural area. For example, a charter of rights for farmers was introduced and that has been flouted on several occasions. When the Minister provides for a time limit people can get into that mindset.

The Minister has stated that consideration by a planning authority of an application is generally limited to eight weeks, etc., but there should be a defined time limit. Perhaps three months would be appropriate. It should be looked at within a particular period.

Martin Cullen (Waterford, Fianna Fail)
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I know what the Senator is driving at and I myself have no problem with putting in time limits, but we must look at the context within which we are dealing – certainly with the two specific issues under the Act to which I have referred. All the latest available data indicate that where there are limits they are working well.

We should also bear in mind that an applicant must co-operate in the process. Many of the delays are in the getting and the assembling of information, but by and large this is working. If I must come back at some stage in the future on the basis of its not working, I will do so. There are time limits under other Acts already in place and we should encourage people to continue in that process.

I do not want to get everybody tied up in a bureaucracy where the date then suddenly becomes everything. That would lead to the High Court because somebody did not comply by the date, leading to another area of appeal. We must be realistic, professional and confident in the authorities carrying out their statutory functions in a manner efficient and consistent with both protecting the environment and, on the other hand, economic activity.

Amendment, by leave, withdrawn.

Ulick Burke (Fine Gael)
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Amendments Nos. 20 and 21 are cognate and may be discussed together by agreement.

Michael McCarthy (Labour)
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I move amendment No. 20:

In page 36, line 2, after "oath" to insert "or affirmation".

This is a technical amendment. I propose it to improve the drafting of the Bill. My understanding is that the Oaths Act 1888 does recognise affirmation but that is only in legal terms. That is the reason for this technical amendment.

Mary Henry (Independent)
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I support Senator McCarthy and hope these amendments are accepted. It is repugnant to some Christian denominations to swear an oath. The same may be the case with other religions. I hope these amendments are accepted.

Martin Cullen (Waterford, Fianna Fail)
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I am advised by the Office of the Attorney General that this is unnecessary and that reference to an oath does include an affirmation. This derives from the provisions of the Interpretation Act 1937. It includes it and that is absolute.

Michael McCarthy (Labour)
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Could the Minister confirm where he got that reassurance?

Martin Cullen (Waterford, Fianna Fail)
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From the Office of the Attorney General.

Mary Henry (Independent)
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This has come up previously and what the Minister has stated is correct, but for form's sake it looks better, for those who feel it is repugnant to swear an oath, that legislation should go through saying so.

Michael McCarthy (Labour)
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I remind the Minister that Senator Henry raised an important point about different Christian denominations. What about a person who does not belong to any religious denomination?

John Dardis (Progressive Democrats)
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It is covered by the 1937 Act.

Martin Cullen (Waterford, Fianna Fail)
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I know what the Senators are driving at, but I have the advice in front of me and I am obviously going to stick with it. If for some reason I were to agree to this, I could imagine the consequences for other legislation. Other legislation would be unpicked and somebody would try to suggest that a new interpretation had been given. We are where we are. It has been confirmed absolutely by the Office of the Attorney General that the oath includes affirmation also.

Mary Henry (Independent)
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On a point of information, I do remember it being taken as oath or affirmation in this House previously. Therefore there is a precedent.

Michael McCarthy (Labour)
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If that is the advice the Minister has received, I accept it. However, surely it is not a bad thing that the parliamentary counsel should act on precedent. As Senator Henry has pointed out, it has happened in the past.

Acting Chairman:

Is the amendment being pressed?

Michael McCarthy (Labour)
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No, but I hope we will return to that issue again.

Amendment, by leave, withdrawn.

Amendment No. 21 not moved.

Acting Chairman:

We now proceed to amendment No. 22. Amendment No. 30 is related. Therefore, amendments Nos. 22 and 30 may be discussed together by agreement.

James Bannon (Fine Gael)
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I move amendment No. 22:

In page 38, line 32, to delete "3 years" and substitute "2 years".

Martin Cullen (Waterford, Fianna Fail)
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I have moved to meet some of the Senator's concerns but I do not believe it would be right to bring the period of review of licences from a minimum of three years to one of every two years, even, for example, where there is no change in the level of emissions from the activity or where the available technology to deal with these emissions has not advanced.

Paragraph (a) of section 90(1), which is the main provision we are discussing, is expressly subject to subsections (4) and (5). These subsections set out extensive mandatory and discretionary circumstances in which a licence may be reviewed earlier than the three year period.

Licence review is an important and demanding process and should not be undertaken unless needed at the particular point in time. Otherwise resources will be diverted from priority tasks. The section already provides strong, and I might suggest robust, arrangements for review of licences as it stands.

James Bannon (Fine Gael)
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In what circumstances may they be reviewed earlier than a period of three years?

Martin Cullen (Waterford, Fianna Fail)
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Obviously if there is a major advance in technology, that would be one area. If something is wrong in terms of the operation of the licence and there is unsatisfactory application of the licence, that would be another reason. Some other possible reasons include changes in BAT which make it possible to reduce emissions further; questions of operational safety; a review is required due to any Act adopted by an institution of the European Community; and emissions from the activity are deemed to be of such significance that existing emission limit values, parameters or technical measures need to be reviewed. There is plenty of scope and it does happen. I do not want to reduce the time limit because that will clog up the system. A limited number of technical experts are available, so three years is fairer and more manageable.

James Bannon (Fine Gael)
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The Minister has explained his point with clarity. I withdraw the amendment.

Amendment, by leave, withdrawn.

James Bannon (Fine Gael)
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I move amendment No. 23:

In page 39, line 40, to delete "substantial" and substitute "up-to-date".

Martin Cullen (Waterford, Fianna Fail)
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The Senator and I are on the same wavelength in trying to make sure we do the best we can with the legislation. However, we also need to be practical. The application of BAT to control and limit emissions is itself a demanding standard, requiring a high general level of protection for the environment as a whole, and the effect of the proposed amendment would be to require reviews of licences whenever there is an updating of BAT, rather than when there is a substantial change in its requirements. This would be unreasonable and could impose an undue burden on industry. Moreover, the wording "substantial changes" in this section comes from Article 13 of the IPPC directive and will also apply in the other member states, so I am also maintaining consistency.

It is preferable that those changes arising from updating of BAT which are not substantial in nature are made in the course of the scheduled reviews of licences already provided for in the proposed new section 90(1). For those reasons and for the sake of consistency among member states in the implementation of these important directives – this is important for Ireland in terms of competitiveness – I do not propose to accept the amendment.

Amendment, by leave, withdrawn.

James Bannon (Fine Gael)
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I move amendment No. 24:

In page 39, lines 43 and 44, to delete "without imposing excessive costs".

As stated earlier, cost should not be a factor when we are considering the environment. The section will stand on its own without the above words. It is self-explanatory. The meaning of "excessive costs" is not fully explained and perhaps a figure should have been included.

Martin Cullen (Waterford, Fianna Fail)
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We should not depart from the terms of the IPPC directive. I am maintaining consistency in that area. The existing text of the Bill provides a balanced approach and if significant reductions in emissions can be achieved without imposing excessive costs, the EPA should be required to initiate the review and, on foot of that, make the appropriate changes in the licence. I do not agree, however, that it is reasonable to impose a requirement on industry which would give rise to costs disproportionate to the benefits likely to accrue. That would be the effect of the Senator's proposal. Moreover, the wording in this subsection comes from Article 13 of the directive and will also apply in other member states. It is important to maintain consistency. It is preferable, therefore, that the qualification be retained. If the costs are excessive they should not be incurred.

Amendment, by leave, withdrawn.

James Bannon (Fine Gael)
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I move amendment No. 25:

In page 42, line 11, to delete "3 years" and substitute "2 years".

Again, I have suggested that the time limit of three years be reduced to two years.

Martin Cullen (Waterford, Fianna Fail)
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We have already dealt with this.

Amendment, by leave, withdrawn.

James Bannon (Fine Gael)
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I move amendment No. 26:

In page 42, lines 51 and 52, to delete "and of all persons for the time being interested therein".

There is no explanation for the wording to which the amendment refers. It is not relevant and should be deleted.

Martin Cullen (Waterford, Fianna Fail)
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This proposal would delete a provision that was included in section 91(1) of the Environmental Protection Agency Act 1992 at the outset. By deleting the words proposed by the Senator, we could be ensuring that a new licence is required every time there is a change of ownership even if there is no change in the operating circumstances of the activity. This seems to be unnecessarily bureaucratic and costly for all concerned, namely, the EPA, the industry and other interested parties. It is important, however, that there is control over to whom the licence is passed, hence the new section 94, which deals with the transfer of licences. The Senator's point may be more fully dealt with in that section. It would not be right, therefore, to accept the proposed amendment.

John Dardis (Progressive Democrats)
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I am sure the Minister will correct me if I am wrong, but if we were to exclude "all persons for the time being", a person, for example, who leased a facility as an operator but was not its owner would be exempt.

Martin Cullen (Waterford, Fianna Fail)
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There could be all sorts of implications. We do not want to introduce unnecessary bureaucracy into the system. What Senator Dardis has said is, in my view, correct. That possibility would be opened up, although that is not the intention of any of us.

Amendment, by leave, withdrawn.

James Bannon (Fine Gael)
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I move amendment No. 27:

In page 43, line 47, after "licensee" to insert "provided he has not committed an offence".

Martin Cullen (Waterford, Fianna Fail)
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Section 94 is a new provision, which introduces new controls on the surrender of IPPC licences. The original 1992 Act had no such provision. It is important that there are such controls and that they are exercised before a licence is surrendered. While I appreciate the thinking behind the proposed amendment, it would be wrong to include a provision that would effectively compel someone who has already been in breach of his or her responsibilities to the environment to remain in control of the site in perpetuity. It would be far better to do as is done in the section, which is to give the agency the power to carry out the necessary inspection, obtain information and monitor before making a full assessment of the condition of the site. If at that stage the agency is satisfied with the condition of the site, it will accept the surrender. We are actually achieving what the Senator wants.

John Dardis (Progressive Democrats)
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I can think of one example of which I have experience. A succession of attempts was made by the EPA and the local authority to try to control a certain activity that was taking place – to the extent of going to the High Court – but the limitations of the legal system were evident in terms of the person's being able to continue the activity. If the Senator's proposed words were added it would preclude the agency from dealing with somebody such as that, which it should be able to do. If a person has a bad record, even if he or she has not been convicted of an offence, it should be open to the agency to adjudicate in a case such as this.

Martin Cullen (Waterford, Fianna Fail)
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Senator Dardis is correct. The Bill goes further when it comes to illegal activities. Previously, if illegal activity was occurring, one had to prove to the High Court that this activity was causing pollution. Under the Bill, it is automatically deemed that pollution is occurring by virtue the fact that illegal activity is taking place. This shortens the process, dealing, to some extent, with the points raised by Senator Dardis.

Mary Henry (Independent)
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In the context of this section and the preceding paragraph, and leaving aside the issue of the surrendering of licenses, what kind of state are we in if people can walk away from their liabilities? Irish Steel in Cork was sold for £1 to the Indian firm, Irish ISPAT, which is now in appalling trouble. Can that company just leave the country, do we have any means of apprehending it or does the State have to clean up the mess?

Martin Cullen (Waterford, Fianna Fail)
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In terms of the current legislation, the Senator is correct. However, this Bill changes the position so that people cannot just walk away. A process is now in place to ensure events such as those referred to by the Senator do not occur. The current situation is unclear and, therefore, I am bringing certainty to the law so that a company cannot just send the licence in the post and leave the country.

James Bannon (Fine Gael)
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I tabled this amendment to copperfasten the legislation for the reasons argued so well by Senator Henry. It provides a deterrent to people who might commit an offence.

Mary Henry (Independent)
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Which section of the Bill will prevent what I have described from happening?

Martin Cullen (Waterford, Fianna Fail)
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This section will do so. The Senator is correct about the current situation, which is why I am introducing this legislation. I am more than meeting Senator Bannon's concerns, but we seem to be at cross purposes. Under this section, the EPA will be given an interventionist approach which will prevent people from walking away from their responsibilities, unlike the current position.

Mary Henry (Independent)
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I have read section 95 carefully and I do not see why people cannot just leave the jurisdiction. Which part of the section states that they cannot walk away from their liabilities?

Martin Cullen (Waterford, Fianna Fail)
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Section 94 is a new provision which introduces new controls on the surrender of an IPPC licence, whereas the 1992 Act contained no such provision. It is important there are such controls and that they are exercised before a licence is surrendered. The EPA can make an assessment to see what has happened on the site and make determinations before the licence is surrendered, whereas there is no such provision in the 1992 Act. I could say a lot about specific cases, but it would not be appropriate to do so. However, the Senator's general point is correct.

Mary Henry (Independent)
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What happens if the company does not surrender its licence and instead heads for Hawaii, leaving the mess to be cleaned up? I cannot see what we could do in such a case, but I would be delighted if there is some provision I have not yet seen in the Bill.

Martin Cullen (Waterford, Fianna Fail)
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They can only surrender a licence under this Act, where the agency accepts that they can do so – they cannot just surrender it. The agency will be a determining factor in the surrendering of the licence because of its interventionist role under the legislation.

Mary Henry (Independent)
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Perhaps I am not making myself clear. Leaving aside the question of people not surrendering licences, what happens if they just leave the jurisdiction?

Martin Cullen (Waterford, Fianna Fail)
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We have laws to pursue them in that case.

Mary Henry (Independent)
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That is provided for under other legislation?

Martin Cullen (Waterford, Fianna Fail)
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Yes. They cannot just walk away.

Mary Henry (Independent)
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I would like to think they could not.

Martin Cullen (Waterford, Fianna Fail)
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The Senator can be more assured than that, under the legislation they cannot just walk away. I understand Senator Henry's concerns about companies simply disappearing, but that is the case in any area of life and we have powers under the Act to pursue them. This is the case with many other aspects of Irish law.

James Bannon (Fine Gael)
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Who will inform the agency? The Minister has not told us that. This is an added deterrent, which is why I proposed it.

Martin Cullen (Waterford, Fianna Fail)
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I accept that. As a monitoring agency, the EPA should know exactly what is happening at all its IPPC licensed facilities.

Michael McCarthy (Labour)
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I appreciate what the Minister says, but there is nothing to stop anyone from boarding a plane in the morning and not returning. In that instance, there is nothing in the legislation to bring them back and make them face up to their responsibilities.

John Dardis (Progressive Democrats)
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This Act is no different from any other legislation in that, if someone commits an offence, it is open to the authorities to seek their extradition, if that is what is required. I do not see the distinction between this Bill and any other. If people break the law they are subject to the relevant penalties, irrespective of the nature of the applicable legislation.

Section 94 refers to the fact that the agency has to be satisfied with the proposed transferee in that the applicant for the licence must be regarded as a fit and proper person to be granted it. It imposes limitations on what the transferee can be and what he or she can do under the Act. If he or she breaks the law, it is up to the State to decide whether or not to extradite him or her under criminal law.

Mary Henry (Independent)
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I do not see, in the new section 95, where it is stated that a licensee must surrender a licence. It states that a person may surrender it and that the EPA may refuse to take it.

John Dardis (Progressive Democrats)
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The new section 94 explicitly states what the transferee must do and what sort of person he or she must be.

James Bannon (Fine Gael)
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We have all seen cases where people accused of crimes have left the country and cannot be found. The amendment proposes an added deterrent in that it includes the term "provided he or she has not committed an offence". I do not see anything wrong with that.

John Dardis (Progressive Democrats)
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We cannot make the criminal law in this legislation. If we want to update the criminal law, we must do so in the appropriate legislation, rather than here.

Martin Cullen (Waterford, Fianna Fail)
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I have listened to the debate on this matter with great interest. Perhaps I am not getting through, even though I have repeated myself on numerous occasions, and Senator Dardis may have put it in more succinct terms. The criminal law deals with all sorts of activities in legislation. If people commit illegal acts, the criminal law is there to deal with them. The Bill identifies a weakness in the 1992 Act, which did not deal with this issue. I am providing a specific condition with regard to the surrender of an IPPC licence and that is an important step forward in protecting what we are trying to do. From time to time people will attempt to break the law, in which case the law will pursue them with all its armoury.

Sitting suspended at 6 p.m. and resumed at 6.30 p.m.

Labhrás Ó Murchú (Fianna Fail)
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Does Senator Bannon wish to speak before I put the question?

James Bannon (Fine Gael)
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Yes. This is a reasonable amendment which would copperfasten the legislation and should be included in the Bill.

Martin Cullen (Waterford, Fianna Fail)
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Does the Senator not realise the effect of his amendment would be that where somebody is in default, to make good what he or she has done, the licence could still not be surrendered? That would not make sense, the Senator is insisting that an offender retain a licence. The logic of this has been lost somewhere.

James Bannon (Fine Gael)
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People can surrender a licence and abscond from the State, as happened in the past. This would give leeway to the agency to investigate those who surrender licences.

Martin Cullen (Waterford, Fianna Fail)
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That is provided for in the Bill.

James Bannon (Fine Gael)
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It is not clear-cut.

Martin Cullen (Waterford, Fianna Fail)
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While I do not mean to be argumentative, section 86(1)(a)(vii) provides that licence conditions have to be included in the licence on cessation and abandonment. The licence stays in force under section 95(1) and can only be surrendered if agreed to by the EPA. Furthermore, the EPA can keep enforcing the licence and adding conditions to it to make sure there is full compliance. There is more in the Bill than what the Senator is attempting to insert. We have lost our train of thought somewhere.

Amendment put.

Tá

James Bannon (Fine Gael)
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I move amendment No. 28:

In page 44, line 47, to delete "a satisfactory" and substitute "an excellent".

Satisfactory is less than good. It is important that a site is handed over in excellent condition and that we acquire a plot of land in excellent condition with no pollutants. The term "satisfactory" can be interpreted as middling to fair. The word "excellent" would be stronger.

Martin Cullen (Waterford, Fianna Fail)
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This section is a new provision which introduces new controls on the surrender of an IPPC licence. The 1992 Act contained no such provision. As it is important that there are such controls and that they are used, I have provided accordingly in the Bill. After the necessary inspection, monitoring and assessment, the EPA is called on in subsection (7) to decide whether the relevant installation is causing or is likely to cause environmental pollution or whether the site is in a satisfactory state. This standard is the one set out in Article 3 of the IPPC directive. It will apply in all other EU member states. There is a similar wording in the new section 83(5)(a)(x) provided for on page 21 of the Bill in relation to measures to be taken on permanent cessation of the activity. I am opting for consistency across the European Union. The standard provided for in the Bill is a reasonable one.

Amendment, by leave, withdrawn.

Amendments Nos. 29 and 30 not moved.

James Bannon (Fine Gael)
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I move amendment No. 31:

In page 54, line 34, to delete "may" and substitute "shall".

The word "shall" is stronger than the word "may" and should be included in order that the phrase would read: ".the Agency shall consider and shall comply with such request.". Why move from a strong to a weaker word and back to the strong word again in this provision? The word "shall" should be inserted.

Martin Cullen (Waterford, Fianna Fail)
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Section 90 of the new Part 4 deals comprehensively with the mandatory circumstances, from Article 13 of the directive, in which a licence must be reviewed. These circumstances, in section 90(4)(a), are as follows: if emissions from the activity are deemed to be of such significance that existing emission limit values, parameters or technical measures need to be reviewed; if substantial changes in BAT make it possible to reduce emissions significantly without imposing excessive costs; if the operational safety of the activity requires techniques other than those currently in use; if a review is required due to any act adopted by an institution of the European Communities or an agreement entered into by the State or an enactment passed since the licence was granted or reviewed.

Michael McCarthy (Labour)
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I move amendment No. 32:

In page 57, line 54, after "High Court" to insert "or Circuit Court".

I propose to discuss amendments Nos. 32, 33 and 34 together as they are related.

Acting Chairman:

Is that agreed? Agreed.

Michael McCarthy (Labour)
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The amendment is fairly self-explanatory. The intention is to reduce legal costs and to give jurisdiction to the Circuit Court where there is unlicensed activity. I hope the Minister will recognise the purpose of the amendment.

John Dardis (Progressive Democrats)
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This is quite a good amendment and would make the system a lot more flexible. It would help to dispose more quickly of a number of cases.

Michael Kitt (Fianna Fail)
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I agree with Senator McCarthy. The amendment does give more flexibility and would hopefully speed up the processing of many of the issues coming before the courts. The more options available for hearing these cases the better.

James Bannon (Fine Gael)
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I also express my support for the amendment. It would free up the courts system to a greater extent.

Mary Henry (Independent)
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Anything that reduces legal costs is very worthy.

Martin Cullen (Waterford, Fianna Fail)
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I am sympathetic to the intention of this amendment. I propose to consider its implications further, in order to be certain, and to return on Report Stage with a suitably revised text for inclusion in the Bill. The points made by all Senators are reasonable, and I will certainly introduce that greater flexibility if possible.

Michael McCarthy (Labour)
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I thank the Minister for his response. I hope he will see fit to accept the amendment on Report Stage because the High Court system is clogged up, expensive and arduous for anybody who wishes to pursue that channel. It is good to give the Circuit Court jurisdiction in this context.

Amendment, by leave, withdrawn.

Amendments Nos. 33 and 34 not moved.

Question proposed: "That section 12 stand part of the Bill."

James Bannon (Fine Gael)
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Section 86(1)(b)(vii) is more likely to impact upon and interfere with necessary commercial operations on a site than on emissions or environmental parameters. This subparagraph is quite unnecessary given the provisions already contained in sections 86(1)(b)(i), (ii), (iii), (iv) and (v). Perhaps the Minister would comment on that. Section 86(1)(b)(xii) is also very open-ended and excessive in terms of the conditions for the payment of fees to the agency.

Martin Cullen (Waterford, Fianna Fail)
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I take it the Senator is referring to paragraph (b) on pages 28 and 29 of the Bill. Those provisions are all part of the 1992 Act and are being repeated in this Bill to maintain consistency.

James Bannon (Fine Gael)
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Section 86(1)(b)(xv), on page 29, is another very open ended provision.

Martin Cullen (Waterford, Fianna Fail)
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These provisions already exist in legislation. The only addition is environmental management systems; the rest was in the original Act. I added this merely to give certainty and a legal basis to what is already happening.

James Bannon (Fine Gael)
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I would appreciate a little more explanation from the Minister on what he has added to previous legislation.

Martin Cullen (Waterford, Fianna Fail)
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Anything we can do to improve the environment, be it by systems, standards, technology or activity is obviously important, as I am sure the Senator would agree. I wanted to give certainty and maintain continuity between the 1992 Act and this Bill. Areas of activity that should be in place or that are in fact happening are being added to legislation to give them certainty, but the changes are very marginal. These activities are already taking place in reality.

James Bannon (Fine Gael)
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Is there any provision in the Bill for an independent appeal other than through the courts?

Martin Cullen (Waterford, Fianna Fail)
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The Environmental Protection Agency is of course independent. All the normal protections that the courts offer any citizen or organisation are available. The purpose of the Environmental Protection Agency, however, is to serve as an independent expert body. I have provided, for instance, that there would be more access for the public to an oral hearing on a particular activity. If people require more information, it should be provided in a transparent way. Aside from this, however, the answer to the Senator's question is no. The courts are the only channel through which an independent appeal can be made.

Paddy Burke (Fine Gael)
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Senator Bannon has raised a good point. The Minister is saying that there is no outlet for appeals other than through the courts. The EPA is the expert authority on these matters in the State. If a case goes to court, the EPA will presumably be the expert called upon to give evidence.

Martin Cullen (Waterford, Fianna Fail)
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Anybody can bring in an independent assessor if he or she wishes. It is up to the individual. People can obviously also put forward their own point of view.

Paddy Burke (Fine Gael)
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The provisions of this section are very complex in relation to licences. Where a person or company in possession of a licence is in breach of planning regulations, would the Environmental Protection Agency or this agency have authority to withdraw the licence?

Martin Cullen (Waterford, Fianna Fail)
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Planning authorities deal with planning matters and the EPA deals with all matters under the IPPC licensing system. The EPA would not be involved in planning matters because they are a matter for planning authorities. The separation of functions in this regard is important. The answer to the Senator's question is "No", but for the right reasons.

James Bannon (Fine Gael)
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The new section 86(2), as inserted by section 12 of the Bill, provides for recognition of the special needs of activities to which paragraphs 6.1 and 6.2 of the First Schedule apply. The subsection states: "the Agency may". This should be amended to read "the Agency shall".

John Dardis (Progressive Democrats)
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On a point of order, there will be chaos if amendments are proposed without being properly tabled.

James Bannon (Fine Gael)
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I am entitled to make a point.

Acting Chairman:

Perhaps we could deal with the section under discussion.

Acting Chairman:

Question put and agreed to.

Acting Chairman:

Section 13 agreed to.

Acting Chairman:

SECTION 14.

James Bannon (Fine Gael)
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I move amendment No. 35:

In page 59, line 38, after "property" to insert "including pavements and streets".

Reference is made in this section to "the prevention of danger to health or damage to property". This should also include streets and pavements because people who damage them in the course of their work often leave them in such a state that local authorities must repair them. The onus should be placed on the people who damaged the streets or pavements in the first instance and provision for this should be included in the Bill. Will the Minister consider including such a provision?

The amendment is probably worded in a general manner, but it is important because it is on streets and pavements that the most damage is caused, usually by JCB diggers, etc. Such damage often creates problems for local authorities and has resulted in their being taken to court by people who have tripped on damaged pavements and so on. The onus should be on the person who damaged the pavement to replace or repair it. This should be included in the Bill because it is a grey area.

Martin Cullen (Waterford, Fianna Fail)
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It is not necessary or relevant to elaborate in this manner. This section deals with genetically modified organisms and the subsection is intended to grant a broad power to make such regulations. We are at cross-purposes. We are dealing with genetically modified organisms in this section and, while I could go into detail on the Senator's amendment, I would only delay proceedings. The amendment is unnecessary because the wording would not add anything to the subsection.

Acting Chairman:

Is the amendment being pressed?

James Bannon (Fine Gael)
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Streets and pavements should be included because responsibility for the area between a street and a property is unclear. Perhaps the Minister would consider this.

John Dardis (Progressive Democrats)
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Even in my most surreal moments, I cannot imagine maize or genetically modified carrots being grown on a pavement anywhere in this country or elsewhere. From that point of view, I fail to see the relevance of the amendment to the section.

James Bannon (Fine Gael)
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I will raise the matter again on Report Stage.

Amendment, by leave, withdrawn.

Section 14 agreed to.

Sections 15 and 16 agreed to.

Amendments Nos. 36 and 37 not moved.

Sections 17 to 20, inclusive, agreed to.

SECTION 21.

Mary Henry (Independent)
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I move amendment No. 38:

In page 62, lines 20 and 21, to delete "or was not being complied with in any respect".

I did not table this amendment because I favour any disrespect for the licences people may hold, but because it is a serious issue for a company to be cited in the Environmental Protection Agency book as not having complied with its licence. Should we try to make more of an effort to distinguish between serious contraventions of a licence – such as emissions from a factory or unit – and those of a technical nature? Perhaps that is already the case and the EPA examines seriously the nature of a licence contravention. For example, if it was a requirement in a licence to take samples from a river on 14 days and they were only taken on 12, that would not be the same as causing a major fish kill. Are all offences treated equally or does the EPA make a distinction when writing its reports? It is damaging for companies to be mentioned as having been in breach of their licences. That is why I tabled the amendment.

Martin Cullen (Waterford, Fianna Fail)
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I understand why the Senator tabled the amendment, but I do not propose to accept it. Obviously discretion would be exercised by the EPA regarding an offence.

Two issues have arisen in the application of this section. Having discovered an unauthorised waste disposal activity, it is incumbent on a local authority to undertake potentially time consuming and expensive investigations to establish the occurrence or risk of environmental pollution before legal proceedings can be initiated. Where such investigations have been undertaken, the District Court has not necessarily accepted that environmental pollution has occurred. This is particularly the case where construction and demolition waste is concerned. This waste does not generally contain organic or hazardous materials and is often regarded as inert.

Acting Chairman:

Is the amendment being pressed?

Mary Henry (Independent)
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No, particularly as it would not be accepted.

Amendment, by leave, withdrawn.

Section 21 agreed to.

SECTION 22.

Michael McCarthy (Labour)
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I move amendment No. 39:

In page 62, to delete lines 29 to 33.

This part of the Bill proposes to reverse the Supreme Court decision in a case taken by a high profile member of Cork City Council, the judgment on which ruled that the local authority, irrespective of payment, had to collect waste. The amendment is clear in the sense that we, on this side of the House, are opposed to this. If the Supreme Court had adjudicated differently, I do not think we would be dealing with a proposal in the Bill to accommodate it. This is overkill. In the event of non-payment of refuse collection charges, managers have recourse through the courts. I hope the Minister will look favourably on the amendment.

Martin Cullen (Waterford, Fianna Fail)
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As the Senator knows, my position on this is pretty well defined. I do not propose to accept the amendment which, in effect, would require a local authority to continue to collect household waste from a person even when he or she fails to pay a relevant waste charge. In other words, people would subsidise their neighbours. Councillors from all political parties wanted this corrected as a result of the Supreme Court case referred to by the Senator. As there must be equity between householders, this is the proper course of action. All of the Senator's colleagues who are members of local authorities would agree.

Paddy Burke (Fine Gael)
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In a later section the Minister will hand powers to county managers to recover the costs of collection and the provision of services in local authority areas. Heretofore, local authority members, when striking their rates and making provisions for the cost of a bin or collection at estimates time, always included an amount for a waiver. What will be the effect on local authority waivers? The manager will have the power to set the fee for collection but who will decide the waiver? Heretofore, the members had a say but with the proposal to hand over all the power to the manager will he or she have the power to decide the waiver? This issue is crucial to Senator McCarthy's amendment.

Mary O'Rourke (Fianna Fail)
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In tabling this amendment I am sure Senator McCarthy was imbued with feelings for individuals. In equity it would be most unfair if I decide to pay my refuse collection charges and my neighbour decides he or she does not want to pay. Although it could come across as a measure whereby if I pay, I am going to make sure my neighbour also pays, this is not the case; it is about a sense of fairness.

Obviously, the waiver system is in place for those who cannot afford to pay. From my knowledge, managers always had a huge input into deciding who should qualify for a waiver. Representations were made and points of view expressed but the managers decided. The waiver scheme is defined on the basis of the amount of income or social welfare received. Mostly managers are reasonable in their application of the waiver schemes if there is a genuine inability to pay.

Michael McCarthy (Labour)
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I ask the Minister to consider that some counties are so cash strapped because of benchmarking that they will not operate the waiver system to the extent some expect. There will be cases where the waiver system will not meet the needs of some. That was the section that inspired the amendment.

Paddy Burke (Fine Gael)
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Will the Minister answer my question on the waiver?

Martin Cullen (Waterford, Fianna Fail)
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I will deal with the waiver when we come to section 35.

Amendment, by leave, withdrawn.

Section 22 agreed to.

Sections 23 and 24 agreed to.

SECTION 25.

Mary Henry (Independent)
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I move amendment No. 40:

In page 64, line 44, after "before" to insert "after".

This section is a very good one. I always like legislation that contains words like "the second activity (irrespective of whether it would otherwise be so regarded) shall be regarded as an activity falling within section 39(1)" and it can then become the first activity. It is very useful because people may have applied for a waste management licence instead of an IPPC licence. However, why does it have to be before and not after? It gives the EPA the power to change the licence from one area to another, which again is a very good idea. Having realised they made a mistake and applied for the wrong licence, applicants should be allowed to apply for the other licence rather than having to start de novo. I am sure the Minister has a great explanation.

Martin Cullen (Waterford, Fianna Fail)
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The intention behind section 39A(7) is to allow a person who proposes to carry on two related activities, that is, an activity involving the recovery or disposal of waste and an activity to which the First Schedule of the 1992 Act applies, to request the Environmental Protection Agency to make a determination as to which licensing regime shall apply before, obviously, the prospective applicant goes to the trouble and expense of preparing the requisite licence application. This lets him or her know at the start of the process the licence for which he or she should apply. There seems to be little merit in an applicant requesting a declaration from the EPA after making an application for either a waste licence or an IPPC licence as the case may be. In that event either the licence application is made under the appropriate Act or it is not. It will be processed, if appropriate, and, if not, he or she will have to go back. Clearly, logically it happens before he or she takes the advice and he or she then makes the application for the appropriate licence under the appropriate Act.

Mary Henry (Independent)
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That seems to be what I want.

Martin Cullen (Waterford, Fianna Fail)
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I think it is.

Mary Henry (Independent)
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The applicant is in a position to get the EPA's advice beforehand.

Martin Cullen (Waterford, Fianna Fail)
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Yes, it will make a determination beforehand.

Mary Henry (Independent)
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I am sorry, I misread the section.

Martin Cullen (Waterford, Fianna Fail)
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I appreciate the point.

Amendment, by leave, withdrawn.

Section 25 agreed to.

Sections 26 to 29, inclusive, agreed to.

SECTION 30.

Question proposed: "That section 30 stand part of the Bill."

Paddy Burke (Fine Gael)
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Operators will be obliged to notify the agency annually of the charges and cost of running a landfill for the previous 12 months. In the majority of cases, the local authority will operate the landfill. How will this be scrutinised? The Minister is transferring powers for waste management to county managers, who can provide whatever figures they like on the operation of a landfill. They can make the costs of using a landfill so unattractive that people will turn to incineration. Who will be accountable?

I have major concerns about the proposals. A landfill operator could also be an incinerator operator. In such circumstances, he would have a vested interest in increasing landfill charges to a level which compels waste collection agencies to use incineration.

Operators must account for the amount of waste arriving at a landfill on a weekly, monthly or annual basis. A charge, including a Government levy, must also be imposed. In many cases the county manager will increase the cost per tonne of using landfill. The proposals will give rise to considerable controversy. I am concerned that it could result in a significant amount of waste being diverted to incineration.

Martin Cullen (Waterford, Fianna Fail)
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While I understand the point the Senator is trying to make, I do not accept it. The manager is in charge when the landfill is established, but the determination is made by the Environmental Protection Agency. I cannot foresee circumstances in which a local authority would forego potential income from its landfill by driving landfill charges to such levels that nobody would consider using it. Such an approach would make no sense. A balance will have to be struck between the use of the various facilities and this will be done through weighting.

I welcome the huge strides now being made in waste management. Our approach to this issue is hierarchical. During discussions with local authorities in recent months, I have been encouraged by the fact that they intend to focus their waste plans for the coming year on prevention and recycling. These two areas will be the bedrock of the system. I will ensure that recycling becomes far more attractive than the other options. I have already established the construction and demolition waste council and I also established the electrical task force under the relevant directive to make sure electrical goods are not brought to landfill. The new waste packaging directives, which apply to business, entered into force on 1 March. We have not taken just one approach, a raft of approaches are being taken.

It is time we, as politicians, acknowledged that the mood among the public and business is in favour of accepting responsibility for waste. Having distributed some €15 million to local authorities through the environmental fund late last year, I will distribute a substantially higher amount later this year. In doing so, I will emphasise to local authorities that the public, particularly householders and private citizens, want sufficient recycling facilities to meet their needs.

We need to strike a balance. We must have the facilities in place before we deal with some of the arguments. The Environmental Protection Agency will licence and monitor facilities to ensure matters are being handled correctly. We will not allow people to charge exorbitant prices for landfill use. Such an approach would not be acceptable.

Paddy Burke (Fine Gael)
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I understand what the Minister is saying and fully appreciate that the EPA will be responsible for licensing. Let us consider Sligo County Council, which has no landfill and takes its waste to landfills in County Mayo. It is possible that running a landfill will become so expensive that Sligo County Council could easily be compelled to bring its waste to an incineration facility.

The Minister referred several times to weighting the various waste options. How does he intend to apply these weightings to landfill, recycling and incineration, now that it too will become part of the waste management programme?

Martin Cullen (Waterford, Fianna Fail)
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Given that I have been accused of introducing incineration, I do not mind using the term. As politicians, we had better begin to understand about what we are talking when we refer to incineration. We are not talking about traditional incineration facilities associated in the public mind with mass burning. No such facilities will ever be built here. They would not be acceptable to the Government or to any political party. The facilities in question have taken a huge leap in terms of technology and treatment, even in the past three to five years. Having addressed the waste problem so late, we have enormous difficulties in our waste management systems, Nevertheless, we are probably lucky because the technology we will introduce will be so advanced as to allow us to have managed facilities with very marginal emissions.

I refer the Senator to section 30(8), which states:

The Agency shall not grant a licence or revised licence in respect of the disposal of waste at a facility referred to in subsection (1) unless it is satisfied that the proposed licensee or licensee will take or will continue to take steps to comply with this section."

This means a proper statement of costs must be produced and, as a result, the real costs will be transparent and open. The public will, therefore, be properly informed about the system. Obviously, once the various facilities are in operation, we will have to examine elements of their usage to ensure that the balance of use is fairly distributed across the various approaches.

James Bannon (Fine Gael)
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The Minister referred to the outdated systems in place perhaps 20 years ago. Recently, a large number of councillors from across the country were taken to Germany to view what is considered a state-of-the-art facility which uses the latest technologies. Those responsible for compiling waste management plans for a number of regions co-sponsored the visits. Is the Minister aware that, within three weeks of one such visit by a number of councillors from the midlands, the facility was closed down on health and safety grounds?

I strongly oppose incineration. No one knows how long a facility must be operating before it is considered tried and tested. Despite evidence that incineration causes damage to health, the Government has done nothing to allay people's fears. If we were to hold a public meeting on incineration tomorrow morning, 500 to 600 people would attend.

Mary O'Rourke (Fianna Fail)
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There is nothing healthy about tipheads.

Martin Cullen (Waterford, Fianna Fail)
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The Senator is correct. I wish we could get more of that message across because what we want to do here in a management sense is light years from what has been the case heretofore. I was not talking about the facility but, thankfully, I have very good officials sitting behind me. The facility about which the Senator is talking was an experimental one which did not deal with incineration but with a new technology which did not work. The Senator forgot to mention that the same councillors visited many other facilities with which they were delighted because they worked extremely well. Let us not confuse the two issues. Thank God I have a few good officials who are ahead of the game.

James Bannon (Fine Gael)
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This was—

Acting Chairman:

Let the Minister conclude.

Martin Cullen (Waterford, Fianna Fail)
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While we will not get into an argument about it, we have to be clear and fair.

I attended a large public meeting recently when for the first time in my life I was on a platform with a young lady who was absolutely expert in this area. I had never met her before but she was brilliant. She had the simple gift of English, yet was highly technically qualified. She dealt with every issue and there was not a whimper at the end of the meeting. If I can get her to help us in the Department or anywhere else, I will because she was superb. She dealt with all of the sensitive issues from breast cancer right across the spectrum and demolished many of the traditional emotional arguments which are not relevant when we talk about the type of facilities Ireland proposes to put in place.

I have spoken to all my colleagues in the European Union about this issue. The number of facilities in the European Union is approximately 360, many of which are starting to close down due to public demand because they are out of date. It should be borne in mind, however, that the incinerators which are closing down abroad are of the old style and that new ones are being built. The public is demanding that these facilities be state-of-the-art and there is no issue in putting them in place in housing estates. I do not propose to put them in place in housing estates here but there is a gap in the entire information flow if Europeans appear to be comfortable with such facilities, which is not the case here.

Paddy Burke (Fine Gael)
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In County Mayo recently a waste collection operator who was segregating waste applied to extend and modernise his premises. Permission was granted by Mayo County Council but was subsequently refused by An Bord Pleanála on the grounds that the plant was four and a half miles from Castlebar. That is the ludicrous position in which this man found himself. The plant is located in a rural area only four and a half miles from the town. An Bord Pleanála refused planning permission, first, because it was not part of the Connacht waste management programme, yet the man concerned has been collecting waste for 20 years throughout the town and other towns also. In fact, he was collecting waste long before the local authority started doing so. The second reason for the refusal was that the plant was located in a rural rather than a built-up area. Obviously, An Bord Pleanála wants such facilities to be provided where waste is generated, namely, in towns, not rural areas.

I remain concerned about the question of weightings. The man concerned provided a service which involved segregating waste and bringing part of it to the landfill site, yet An Bord Pleanála refused him permission to expand his premises. As a result, he is in a terrible state. The less waste that goes to landfill the more it will cost per tonne because it will be done on a tonnage basis. While there is no doubt that some managers will push up the price per tonne, I hope it will be weighted in terms of recycling rather than incineration, if possible. It would be ridiculous to have it weighted in a situation where waste could go to a recycling facility or for incineration. I accept the Minister spoke about the weightings but it should be spelled out in the Bill. Every Senator is well aware that the cost per tonne at landfill sites will increase dramatically, especially if there is a reduction in tonnage. If the weightings were in favour of waste going to recycling rather than incineration—

Martin Cullen (Waterford, Fianna Fail)
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I agree. That is what we will do.

Cyprian Brady (Fianna Fail)
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On Senator Burke's point about local authorities and the provisions in the Bill which place restrictions on the issuing of licences, we had an interesting case recently at the Joint Committee on the Environment and Local Government whereby representatives of Wicklow County Council were brought in to explain its position on landfill sites in County Wicklow. It proved to be a particularly enlightening presentation, and that was only one local authority. There are mechanisms, therefore, for maintaining pressure on local authorities to fall within the existing guidelines. We have also had representatives of Superquinn before the committee to deal with the question of packaging. Representatives of Roadstone came before us to talk about its landfill sites. There are other mechanisms in place, including the joint committee.

Mary Henry (Independent)
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Senator Burke spoke very sensibly. The real problem is to try to get people involved in recycling. The Minster is right when he talks about the difference in incineration 20 years ago and today. People are always asking me to appeal on health grounds with a view to preventing incinerators being built but that is becoming impossible with modern incinerators. The real problem is that with incineration it is too easy for people to stop trying to minimise waste and start recycling. It is important that whatever rating we introduce will encourage the minimisation of waste for a start and then recycling because incineration is too easy.

I will not be popular in the Dublin 4 area for saying this but incinerators will have to be built near where the problem is created because we cannot continue to cart waste all over the country. People will have to understand that if they produce huge amounts of waste, it will have to be disposed of near them because otherwise we will have enormous problems in moving it around the country, including traffic problems. The economy of scale involved in removing this waste is important also. The Minister is right about the incinerators being closed down in the European Union due to their inefficiency or the pollution they produce but in respect of the modern facilities being built, we cannot make a case on health grounds and say they are causing terrible trouble.

James Bannon (Fine Gael)
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Senator O'Rourke referred to the quality of some of our landfill sites. It is recognised that there are serious problems in that regard. Some old landfill sites were nothing more than an add-on facility.

Martin Cullen (Waterford, Fianna Fail)
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A hole in the ground.

James Bannon (Fine Gael)
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The more modern landfill sites work very satisfactorily in most cases. I have inspected sites on the Continent and in America and their operators and the general public are more than satisfied with the measured recycling facilities built in, etc.

Some local authorities received grants at harvest time for recycling facilities but it was done on a piecemeal basis. I do not understand the reason every local authority was not facilitated with grants for that purpose. In Longford this issue came up yesterday during a discussion on the Protection of the Environment Bill and there was major disappointment on all sides that we did not receive grant assistance. Longford is a small county with a very low rate base.

The incineration facility visited by 15 councillors from my county was regarded as the prime example of such a facility in Germany.

James Bannon (Fine Gael)
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When it was closed down we had no communication from the Department of the Environment and Local Government to explain the situation and public representatives felt let down. Many of the representatives returned home with the view that the facility was state-of-the-art and that we should have something similar in Ireland. However, their confidence in the system was undermined when the facility closed down. Nothing has yet been done by the Department – not even so much as a press release has been issued – to communicate information about the closure. However, if I attend a public meeting or visit a community development association and this issue arises, the incident to which I refer is mentioned. We can say that it was just a trial run, but why were public representatives brought to inspect a facility and told on the day they visited it that it was the modern way to dispose of waste? That issue must be addressed because councillors are totally frustrated by the way in which they were treated.

What happened gives the impression that similar facilities around the world can close down and this impression means less emphasis is put on recycling. No effort will then be made to recycle because such facilities need to be fed with waste to become viable. That is a big concern for the public.

John Dardis (Progressive Democrats)
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What section is under discussion?

An Leas-Chathaoirleach:

Section 30.

John Dardis (Progressive Democrats)
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I was unsure in that regard. It would probably be reasonable to say that the majority of councillors who went on the memorable trip to Germany did more damage to their livers because of what they consumed while there than would have been done by whatever might have emerged from the chimney stacks of the facility they visited.

Michael McCarthy (Labour)
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No denial.

John Dardis (Progressive Democrats)
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That underlines our general attitude to these matters.

It was stated on Second Stage that there is no such thing as a dump any more – they are all superdumps. The superdump proposed for Kill would have been convenient for Dublin waste, as it would have come as far as Kildare but would have been outside Dublin. I had a memorable experience at a protest meeting against that dump when a person sitting beside me smoked Disque Bleu cigarettes all night. At about 10.30 p.m., I had to ask him to respect my environment yet he was one of the most active opponents of the superdump.

Martin Cullen (Waterford, Fianna Fail)
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I do not want to delay proceedings, but I am pleased there is a good substantive discussion on this matter even if, as Senator Dardis said, one is not sure what section we are dealing with.

I do not like doing this to Senator Bannon, but the Longford application was wholly inadequate and unacceptable in its quality, presentation, documentation and back-up material. I will go no further, as I have made my point, and I want Longford to be involved as much as any other area. However, we must ask why some local authorities are doing exceptionally well while others are not. It comes down to leadership on both sides at local level. Having said that, I want to encourage all local authorities. I will work with and fund their activities, but there has to be a good basis for that work.

Regarding Senator Henry's point, we have a national waste prevention programme and a market development programme for recyclables. I am excited by the fact that so many sectors of Irish industry are now becoming involved and taking on responsibilities in this area. I am heartened by the public attitude to this because it is changing substantially. These plans worked in other countries and one is not taking from the other.

Michael McCarthy (Labour)
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Rarer again.

Martin Cullen (Waterford, Fianna Fail)
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Yes. We must understand what we are discussing. It is almost comical, but 100 times more dioxins are created on bonfire night than would be generated in 12 months by all the incinerators one could put in place. That is the reality with which we must deal. We are out there with our kids shovelling stuff on to bonfires. We go collecting with them and help to poison them. Those fires, with all the tyres burnt on them, will do more damage in years to come than anything else. I am trying to introduce the best technology to reduce and manage the problem in order that we may live in a society that protects both our health and the environment. Nothing in the world is risk free but we can act to reduce the risk substantially and maintain our environment.

James Bannon (Fine Gael)
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The Minister referred to County Longford, one of the counties in the midlands that did not adopt the regional plan. Emergency legislation was introduced that transferred powers to the manager. Elected representatives are not currently responsible for making the submission for funding for recycling.

Martin Cullen (Waterford, Fianna Fail)
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I accept that there are councils which are struggling to get this right. There are different solutions being tried in different areas and we will come to a conclusion about all of them. We should not expect to win the Grand National the first time we enter it. There is a long course before us, this is not a seven furlong sprint.

An enormous amount is being done and we should not be led by the perception that the opposite is the case – I include County Longford when I say this. If mistakes are made, it is up to me to work with the local authorities to correct them. We will work with them and provide the necessary financial resources.

Question put and agreed to.

Sections 31 to 34, inclusive, agreed to.

SECTION 35.

Michael McCarthy (Labour)
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I move amendment No. 41:

In page 73, line 14, to delete "may" and substitute "shall".

This stronger wording would give a stronger footing to the waiver system which is more important now than ever. People will find it difficult to pay service charges. In Cork they have gone up by 108% to €390. The waste management strategies of some counties are light years behind and the appropriate centres for recycling are not in place to initiate the three Rs: reduction, recycling and reusing. It is vital that the waiver system is strong because managers will have differences of opinion. Only some will have recourse to the system because of the exorbitant increases in some county council areas.

Martin Cullen (Waterford, Fianna Fail)
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I will not accept an amendment that would compel any local authority which made waste charges under the new section 75 of the 1996 Act also to provide a mandatory system of waivers in respect of all or part of such charges. It would be a departure from the status quo that would not be useful or necessary.

Currently local authorities are not under an obligation to provide for waivers in respect of waste charges. The provisions of section 75(3) of the 1996 Act are identical to those of section 5 of the Local Government (Financial Provisions) (No. 2) Act 1983 under which waste charges are currently levied. Accordingly, local authorities will retain discretion in the matter.

Michael McCarthy (Labour)
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There has been an increase of 108% in Cork. No one could have foreseen in the 1990s that charges would be so high today. I accept that charges were lower then because we had not got our act together in the waste management area. If the amendment is not accepted, there will be applications for waivers from those on low incomes who are not recipients of social welfare. Given the discretion of the manager and the further discretion granted in the Bill, he or she will be able to turn down a waiver application from someone in gainful employment on a low wage. The minute he or she enters employment details on a waiver application the application looks farcical because he or she may appear well enough off to pay the charge when that is not the case.

The waiver system should be mandatory because only county managers exercise this power. I am dubious about increasing their power and about legislation in recent years that has eroded the power of elected representatives.

James Bannon (Fine Gael)
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We have all come across hardship cases. The elected representative is the person who receives such complaints. We introduced the waiver system and inserted a provision for hardship cases. We are responsible to citizens and understand the situation. We must face the electorate. Circumstances come to our attention, not the Government, where a waiver should be applied. I am all for those who can afford it paying but there should be provision for hardship cases.

Martin Cullen (Waterford, Fianna Fail)
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Making the system mandatory would not improve it, it would simply mean a manager could introduce a system that observed the legal niceties of the Bill without any meaningful basis. The current system is working well across the State. If it is not broken, we should not try to fix it. I am loath to go any further and cannot accept the amendment.

An Leas-Chathaoirleach:

When is it proposed to sit again?

John Dardis (Progressive Democrats)
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At 10.30 a.m. tomorrow.