Silvermines, which the government spent €11m remediating in the 1990s, was back in the news in May 2017 as three cows were found dead of lead poisoning. A new inter-agency group involving the HSE, Department of Agriculture, Tipperary County Council, Environment Protection Agency, Teagasc, Irish Water, The Food Safety Authority and the Department of the Environment has since been set up again to address this new situation. It may be of little comfort to local farmers who find restrictions placed on their farms again and to local residents concerned about public health that Silvermines has had significant remediation already.
At the same time as this old infamous contaminated site was rumbling again, Judge Richard Humphreys in the High Court was preparing his orders on Ireland’s largest illegal landfill at Whitestown in County Wicklow. The clean-up bill is now estimated at as high as €140m. The case, Brownfield Restoration Ltd versus Wicklow County Council, has been covered in previous issues of Village.
Rachel Carson’s book ‘Silent Spring’ in 1962 is credited with drawing widespread attention to global environmental pollution. In the 1970s discovery of a toxic landfill in Love Canal near Niagara Falls in upstate New York became the impetus for the United States adopting a law called CERCLA (Comprehensive Environmental Response Compensation and Liability Act) in 1980. It created a fund to address and eliminate the threat from contaminated sites all over the United States and then attempted to recover the monies from the entities that had caused the pollution. It has become known as Superfund.
The Whitestown site in County Wicklow and Judge Humphreys’ order is perhaps our Love Canal moment. Do we need to create an Irish Superfund law?
Judge Humphreys in his judgment last July said “a full account of this saga would be book length” and described the activities as reminiscent of 1930s Chicago which prompted the plaintiff’s barrister to refer to the modern-day TV show ‘The Sopranos’ which prominently features gangster-related waste-management control.
The Whitestown quarry is roughly the size of eight rugby fields. Up to twenty two companies were listed as having hauled waste there from all over Dublin including from hospitals. Wicklow County Council dumped there until the week of its closure. Now the 80,000 tonnes of waste rests like a giant toxic teabag mixed with a million tonnes of other soils from a botched remediation effort. This ‘teabag’ sits partially in the water table which fluctuates with the seasons by up to two metres. So rainfall and the fluctuating water table create a toxic blend called leachate. The off-gassing can be equally toxic and one investigator was overcome with fumes and hospitalised in the early days of discovery. While up to 93% of the waste (primarily roadworks materials) at the site was deposited by Wicklow County Council, the description of blood-stained hospital theatre waste strewn all over the site left many queasy.
Two of the early investigators on site were Donal O’Laoire and Ronnie Russell of O’Laoire Russell & Associates Limited. O’Laoire had been hired by Wicklow County Council as consultant in 2001 to come up with a plan on remediation. Both O’Laoire and Russell, who gave evidence in the case, had also been directors of Eco-Safe Systems Limited since 1999. it was listed as one of the 22 contributors to the site. Eco-Safe specialised in hospital-waste disposal & sterilisation. Dr Russell as founder and president of the Irish Decontamination Institute in 1989 (then called the Irish Association of Sterile Services Managers) had established an important network for healthcare facilities dealing with these issues.
O’Laoire and Russell had also founded an environmental management and auditing firm in the 1990s. At this time certifying the compliance with environmental laws was becoming an established area of expertise leading to the ISO 14000 standards for environmental management being set in 1996. O’Laoire has published for the UN on environmental management for developing countries particularly African countries. Russell continues to be a leading research scientist at Trinity College Dublin and recently published guideline Manuals on decontamination for Saudi Arabian healthcare professionals. He is current chair of the HSE National Decontamination Advisory Group and vice chairman of An Taisce’s Environmental Education Unit as well as representing Ireland at the UN in Geneva on disarmament issues as a technical expert on biological weapons.
These are arguably two of the leading and trusted influential individuals on chemical environmental issues in the State, which makes the performance at Whitestown so disappointing.
The problems created by the initial waste dumping then got exasperated by a “botched remediation” plan. The judge subsequently, in his finding of facts on the Whitestown dump, states: “Mr. O’Laoire developed a proposal which he himself correctly in evidence described as corrupt whereby he and his associates (variously described as a syndicate or consortium) would make a profit from a commercial venture designed to remediate the site… clearly he was engaged in a massive conflict of interest that was actual rather than potential”.
Judge Humphreys later described how the Irish EPA placed itself in a compromising situation by being a part of the Technical Working Group on the remediation plan. The EPA was effectively being gentler to the public authority than it would be to a private operator. Wicklow County Council were hoping they would not have to remove all the contaminated soil even though they were requesting and celebrating judgments in other cases (eg case against Fenton, 2002) demanding defendants do just that at other illegal dumps.
Judge Humphreys now had to assess the risk the site posed, using European and Irish guidelines as well as case-law. The Irish EPA guidelines gave him a scale to calculate risk. The 2007 Code of Practice: Environmental Risk Assessment for Unregulated Waste Disposal Sites authored primarily by Margaret Keegan, of the Office of Environmental Enforcement, ironically had Michael Boland of Wicklow County Council on its technical review committee. Boland was a key witness on the botched remediation-plan analysis.
The risk model used by the EPA assigned ‘points’ to the amount of leachate and landfill gas mobility pathways and proximity of the site to either human presence, protected areas, surface water bodies, groundwater aquifers or public water supplies. The combined points total gave a rough estimation of the severity of pollution risk at the site being investigated.
The Whitestown landfill sits beside the Carrigower river in a special area of conservation near human dwellings on an aquifer. The Carrigower river feeds into the nearby River Slaney which is used as a source of public water. Judge Humphreys assessed this dump as attracting near maximum if not maximum points for risk. Subsequently he requested all 1.4 million tonnes be removed and gave a strict time frame of 78 months for all work to be completed.
Where Wicklow County Council will find €140m to fund this is now the question. In 2012 at a council meeting Councillor Tommy Cullen requested a contribution from Dublin for the billion euros worth of water it extracts from Wicklow reservoirs.
Judge Humphreys chastised the council for starting a botched effort before exhausting the opportunities to pursue the other polluters to pay. He cited the other known 37 illegal landfills in the state and the 285 closed unregulated landfills, as well as the 61 licensed but closed council landfills and 107 private legal sites now closed. He listened to Wicklow County Council’s defence that the pollution leachate might take decades to materialise and that there appeared to be no immediate risk. He painstakingly listed all reasons under case law and European law as well as the EPA code of practice that total removal should happen. With this development, the Whitestown case creates new circumstances for the state management of all these old ‘giant teabags of toxic waste’. Burying our heads in the sand is only going to postpone the inevitable as now evidenced in Silvermines and Whitestown. We need a proper management plan and fund for all known contaminated sites regardless of their legal status.
The US Superfund law was amended in 1986 (SARA title III) and environmentally progressive states such as Minnesota adopted additional state Superfund laws for sites falling outside federal parameters. Scott Pruitt, the current Trump appointee, has promised to speed up Superfund clean-ups. The polluter-pays principle is rigorously pursued by US lawyers and all waste traced back to its generator which pays for the damage.
As Environment Minister Naughten reviews the Irish 1996 Waste Management Act , which took the end-of-life onus away from the waste producer as long as they joined a state-approved recycling initiative (monopoly Repak), EU directives and case law such as this will give insurance liability companies and manufacturers new cause to plan for their product disposal. The Repak fund should now become less a recycling promotion fund and more a waste-reduction and clean-up fund. There is nearly 40 years of US experience to draw upon. His colleague in cabinet, Minister for Health Simon Harris, elected by the people of Wicklow, has now both a local and national brief to want such a Fund to happen.
When the leading environmental consultants from Academic, State, private industry and local government can get it so wrong over 25 years in Wicklow, it is time for a change of leadership on contaminated sites, and for importing the successful US model of Superfund.
Ciaran Mannion helped organise events concerning contaminated sites in Minnesota in the 1990s eventually leading to the foundation of MNbrownfields.org. He has attempted to create similar voluntary initiatives for contaminated sites in Ireland.