James Heffernan (Labour)
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I welcome the Minister of State, Deputy Dara Murphy, to the House. This matter concerns the need for the Minister for the Environment, Community and Local Government to establish an environmental ombudsman office to deal with complaints made against the EPA. This stems from a number of sources. It goes back to the report commissioned by the Minister for the Environment, Heritage and Local Government in the previous Government, John Gormley. In fairness, it was a very comprehensive review undertaken by John McCarthy. It said that serious legislative change was needed to make the EPA more accountable and effective. It said that under the legislation covering it, the EPA had blanket statutory immunity when carrying out its functions. The report said that this was very difficult to justify in a modern context because there should be no need for that kind of statutory immunity if the EPA is carrying out its job and functions correctly. What is it afraid of? I do not see why it should be afraid of litigation if it has done everything in the right order. Perhaps that is the crux of the problem. That report also said that it would be appropriate for the agency to be brought under the remit of the Ombudsman in respect of any alleged maladministration.

I raised the matter of an environmental ombudsman with the director of the EPA, Laura Burke, when she attended a meeting of the Oireachtas Committee on Environment, Culture and the Gaeltacht last November. That stemmed from an interview with Ms Burke when she took over, which I read. It alarmed me because when she took over, she said she wanted to reposition the agency to support economic growth and move away from the perception that it was purely an environmental watchdog or policeman. She did say that Irish businesses were broadly compliant. I do not know what kind of statement that was. Was she referring to investors who are not Irish and who might not be compliant? That investigation also noted concern among stakeholders at the apparently low level of prosecutions being taken. At the time, the director general said:

What you don't want to do is go racing to prosecute. What you look at is guidance for the sector, you put in a proper licensing regime, you then do audits, inspections, etc, and you give businesses a chance to put in rectifying measures. And in the context of companies not delivering on their side of licensing, then you go to prosecutions, but enforcement is much more than prosecution.

In drafting the Ombudsman (Amendment) Act, the Department of the Environment, Community and Local Government engaged extensively with the Department of Public Expenditure and Reform and the Office of the Attorney General on this issue to achieve an acceptable legislative wording to enable administrative procedures to fall within the legislation, but excluding the quasi-judicial function of the EPA. A satisfactory form of wording was not finalised so the EPA remains exempt for the purpose of the Act. However, we have no objection to falling within that Act.

Dara Murphy (Cork North Central, Fine Gael)
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The Ombudsman (Amendment) Act 2012 was signed into law by the President on 31 October 2012. The effect of the Act is that the Minister for Public Expenditure and Reform can, by regulation, provide that entities be included under the remit of the Ombudsman.

I am advised that the Department of the Environment, Community and Local Government, under whose remit the Environmental Protection Agency rests, had communicated to the Department of Public Expenditure and Reform that it wished to see the administrative functions of the EPA included in the Ombudsman (Amendment) Bill 2012, but that the substance of licensing, regulation and enforcement be excluded, on the grounds that such decisions are quasi-judicial and highly technical. In any event, there are separate review and appeals structures governing these functions. As an acceptable form of wording could not be devised, the EPA was placed on the list of exempted agencies, as outlined in the Second Schedule to the Act.

The Department of the Environment, Community and Local Government fully endorses the recommendation of the independent review of the EPA, which was completed in 2011 by a panel of experts from across the main areas connected to the work of the agency. It stated the "EPA should be subject to the Ombudsman's jurisdiction in respect of alleged maladministration".

In considering oversight by the Ombudsman, the review was positive about the possible impact of the EPA coming within the Ombudsman's jurisdiction, as follows:

The Group concluded that the EPA should be subject to the Ombudsman's jurisdiction. This development would provide a free, independent complaint mechanism in the case of alleged maladministration by the EPA. The availability of such an avenue of redress would serve to increase accountability and transparency and underpin public confidence in the EPA.

James Heffernan (Labour)
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With the greatest of respect, that is just pure waffle. It is what I heard previously from the director general of the EPA, namely, that an acceptable form of wording could not be found. How many experts are working in the Department who could not formulate acceptable wording? It is no good telling this to people whose children are getting cancer.

Paddy Burke (Fine Gael)
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Has the Senator a question for the Minister of State?

James Heffernan (Labour)
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I do. I will show the Minister of State exactly why there is a need for an ombudsman inquiry or a different form of inquiry into the EPA. Let me refer to the preliminary documentation produced by the EPA in 2007 regarding the granting of a licence to Aughinish Alumina, the plant about which I am talking. The documents states: "Notwithstanding this clause the licensee is prohibited from commencing deposition of process residues in [...] in advance of an agreed security being in place." That means one cannot go dumping one's rubbish until a bond is in place, such that if there is a disaster there will be enough money to clear it up.

Paddy Burke (Fine Gael)
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Has the Senator a question for the Minister of State?

James Heffernan (Labour)
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I have.

Paddy Burke (Fine Gael)
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Ask the question, please.

James Heffernan (Labour)
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The meeting to which I referred resulted in the advocating of the deletion of the whole final sentence. True enough, when a licence was granted to these people, who are continuing to pollute in my area-----

Paddy Burke (Fine Gael)
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Has the Senator a question?

James Heffernan (Labour)
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-----there is no sign of that at all. We still have no bond in place. We still have no protection for the taxpayer or the people in Limerick and elsewhere around the country. If something goes wrong, we will be left picking up the tab again. This was a decision made by the EPA.

Paddy Burke (Fine Gael)
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I have given the Senator a fair opportunity to ask a question.

James Heffernan (Labour)
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That stinks to the highest heaven and has to be investigated by someone somewhere. If an acceptable form of wording cannot be formulated to bring the EPA under the remit of the Office of the Ombudsman, I despair over the quality of the staff being employed by the Government.

Dara Murphy (Cork North Central, Fine Gael)
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I reiterate that a satisfactory mechanism will be found. Decisions may be challenged in the courts or by way of judicial review.

James Heffernan (Labour)
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At a cost of thousands or millions of euro to ordinary people.