By Frank Connolly.
The multi-million scandal surrounding the illegal dumping of waste in county Wicklow is another legacy left to the new environment minister, Alan Kelly, by his predecessor, Phil Hogan and another reason why the latter’s proposed elevation to the post of European Commissioner has been questioned.
In October last, Nessa Childers, MEP wrote a letter of complaint to then EU environment commissioner Janez Potocnik detailing the history of illegality, incompetence and downright dishonesty with which a succession of state agencies and private waste companies have dealt with the massive dumping of hazardous hospital, commercial and domestic waste in the ‘Garden County’ which first came into the media spotlight as long ago as 2001.
In particular, she referred to the illegal landfill site at Whitestown, County Wicklow, where an estimated million tonnes of illegal waste is located and which requires urgent remediation due to the environmental threat it poses to a local waterway that runs into the river Slaney – and to salmon-spawning and otter habitats.
Childers pointed out that the failure of Wicklow County Council and the Department of the Environment to clean up the site is in breach of a judgment of the European Court of Justice in 2005 which specifically ordered immediate remediation action.
The remediation has been delayed due to an extraordinary sequence of events which were revealed in a High Court action taken by Wicklow County Council against a number of parties it claimed was responsible for the illegal dumping.
The Council was seeking to get damages off the polluters in order to raise the necessary cost of remediation which was estimated to be in the tens of millions by the local authority.
During hearings of the case in July 2009, it emerged that an authorised officer of the Council, Donal O’Laoire, had been employed to identify the nature and source of pollution at the landfill in 2001 but had then sought to secure a contract worth in excess of €30 million to clean it up. The court heard that O’Laoire had discussed the plan with County Manager Eddie Sheehy and County Head of Services Michael Nicholson during 2002. But it later came unstuck when he failed to obtain the necessary lease or other interest in the landfill which would allow his company to apply for a licence from the Environmental Protection Agency (EPA).
In late 2002, the landowner John O’Reilly, refused a lease offer of €100,000 per year from O’Laoire’s company, Environmental Remediation Ltd. It emerged later that O’Laoire sought to do a deal with O’Reilly to lease the land while he was also investigating the landowner in respect of criminal charges related to illegal dumping. O’Reilly was subsequently charged and convicted along with other illegal dumpers.
O’Reilly instead agreed to sell the entire site to Brownfield Restoration for a sum believed to be in the region of €2 million. Brownfield then successfully obtained a licence, more restrictive than it sought, from the EPA but was obstructed from commencing remediation work and from developing its planned waste facility.
Transcripts of the High Court case which was adjourned in late 2011 following the dramatic intervention by the Minister for the Environment, Phil Hogan and his officials, who promised to provide the council with the 50m remediation costs, have revealed an extraordinary series of questionable actions by Council officers, according to local representatives and Ms Childers.
Before the adjournment of the case the court had heard of alleged conflicts of interest involving O’Laoire and his company and an allegation that he was in contempt of court for breaching an order of the judge not to discuss the evidence of other witnesses, including that of County Manager Sheehy, before his own cross-examination by council for the defendants. O’Laoire was a leading witness for the Council.
Instead, the court heard that O’Laoire had obtained transcripts of Sheehy’s evidence from the office of the law agent (solicitor) of the council and had discussed issues central to his cross-examination with another senior council official and members of its legal team before he entered the witness box in July 2009.
It also emerged during the action that O’Laoire had helped prepare the Council’s objection to the application by Brownfield for an EPA licence even though he had himself sought to secure the contract and licence for the remediation work only months earlier. Furthermore he had been chief witness in the criminal cases taken by the Council against a number of those responsible for dumping illegal waste at Whitestown and other sites in Wicklow before the High Court action for damages took place. It also emerged that O’Laoire had failed to disclose the illegal dumping by the Council itself at Whitestown over a number of months, dumping which he had been employed to investigate.
A former member of the Irish defence forces, O’Laoire was described by lawyers for the council as incommunicado when the case resumed in late 2011.
The Minister’s intervention on that day when lawyers for Wicklow County Council said that it had agreed to undertake the remediation of the site with funding provided by the Department, meant that the court never heard even more serious allegations of corruption which the owner of Brownfield Restoration had made to the Garda during its lengthy investigation into the illegal dumping and which were to be introduced by his senior counsel, Ian Finlay, during the proceedings.
In her complaint to the EU Commission, Nessa Childers stated that “a major contributor to the inordinate delay enforcing remedial action from the landowner and illegal dumpers was the behaviour of the County Council’s authorised officer appointed in 2001 who was responsible for the investigation of this site; in that the authorised officer sought to profit personally from the remediation by setting up his own remediation company and sought to have the site leased from the owner who he was responsible for investigating, to this
The illegal dumping was first disclosed by independent Baltinglass Councillor, Tommy Cullen, in the chamber of Wicklow County Council as far back as November 1998 following complaints by local residents, Emer and Russ Bailey. Over the years Cullen, a former Labour Party councillor, continued to raise the issue of illegal dumping with the Department of the Environment, and with Tánaiste Joan Burton, who, he says, raised it with the former environment minister, John Gormley when he was in office.
Cullen has recently met advisors to the new environment minister, Alan Kelly, and of Sinn Féin leader, Gerry Adams – who asked a series of questions in the Dáil concerning controversial issues, including waste disposal in County Wicklow, and of the suitability of Phil Hogan for the job as EU Commissioner given his failure as minister to investigate many of the complaints made to the Department of the Environment during his tenure.
Wicklow County Manager Sheehy and Cullen have clashed over many issues in the past. In July 2008, Sheehy directed the law agent (solicitor), David Sweetman, to have Cullen removed from office as a member of Wicklow County Council. The Manager and law agent carried out the removal of Cullen from his public office despite the Council having received legal advice that they would be acting outside their authority by doing so. Councillor Cullen immediately sought a judical review of the decision before Judge Mary Laffoy in the High Court. The application was joined by the Attorney General who opposed Sheehy’s unprecedented action. Gerard Hogan SC represented Cullen. Judge Laffoy decided that Sheehy had acted outside of his authority and she also described his decision as an “absurdity”.The law agent had to apologise to Councillor Cullen at the following council meeting. The case cost the state in the region of 1300,000 in legal costs.
The issue which led to Cullen’s unlawful removal from the council emanated from a controversial decision by the county manager to grant planning permission for an animal incinerator to a Dublin based company to be built in the scenic area of Avoca. The Manager’s decision was overwhelmingly opposed by the majority of county councillors and local residents. The incinerator project never went ahead.
She continued: “The owners of the site and Wicklow County Council were then engaged in court action regarding the site. The County Council and the authorised officer did not comply with a High Court order for discovery of documents and the authorised officer eventually failed to communicate with the County Council and the court. As a result, many years of investigation and evidence were rendered useless and the County Council had to re-start the process of investigating the necessary remedial action required at the site. Further delays were caused by the County Council’s refusal to admit to the court the full extent of their own illegal dumping on the same site prior to their official discovery of the illegal site in 2001”.
She also queried the inconsistency in the Council estimates of the cost of remediating the site which she claimed ranged from €8 million to €33.5m to €50m. Her primary concern remains the failure of the council or the responsible department to effectively clean up the Whitestown site as required by the European Court of Justice.
Meanwhile, Brownfield Restoration is pursuing a potentially costly legal action against the Council which has so far failed to make any of the responsible polluters pay for the multi-million-euro mess.
Newly appointed junior minister and Wicklow TD, Simon Harris, told Village that the range of controversies in the county needs to be investigated. “All of these issues need to be examined as there appears to be a crisis of confidence in the administration of local government in Wicklow”, he said.
Summary chronicle of actions regarding illegal dumping in Whitestown quarry, Co. Wicklow
1998 Two reports were made notifying Wicklow County Council about illegal dumping in Whitestown Quarry. Wicklow County Councillor, Tommy Cullen, raised the issue of illegal dumping at Whitestown in the Council chamber and local residents Emer and Russ Bailey made a complaint to the Council providing dates, times and lorry-registration details. Councillor Cullen’s statements are fully recorded in the minutes of the Council meeting.
1999 Wicklow County Council made an offer to lease this illegal dump during the period when illegal dumping was on-going.
2001 November: Wicklow County Council officially discovered illegal dumping at Whitestown although the complaints dated back three years. Wicklow County Council employed a consultant, Donal O’Laoire, and appointed him as the authorised officer to take charge of the investigation into the large-scale commercial illegal dumping.
2003 March The site holding the illegal waste was purchased by Brownfield Restoration Ltd for over €2m from the previous landowner.
2004 Brownfield Restoration Ltd applied for planning permission and a licence to operate a landfill at Whitestown Quarry.
2005 April In a landmark judgment against Ireland the European Court of Justice ruled that Ireland had infringed the Waste Framework Directive by generally and persistently failing to fulfil its obligation to fulfil various articles under that Directive. The European Court of Justice declared, inter alia, that, “ by failing to take all the measures necessary to ensure a correct implementation of the provisions of Articles 4, 5, 8, 9, 10, 12, 13 and 14 of Council Directive 75/442/EEC of 15 July 1975 on waste, as amended by Council Directive 91/156/EEC of 18 March 1991, Ireland has failed to comply with its obligations under those provisions”.
2006 September A licence was issued to Brownfield Restoration Ltd. at the insistence of Wicklow County Council and the EPA, to remove all waste from the site.
2009 July Court case commenced; Wicklow County Council v. Brownfield Restoration, Dean Waste, A1 Waste; and Brownfield Restoration v. Wicklow County Council.
2009 October Case adjourned after 26 days of hearings.
2009 December Judgment issued against Wicklow County Council for costs in the application to strike out proceedings because of its conduct as plaintiff. The case was due to re-commence following further delays in compliance with discovery by Wicklow County Council on 24 January 2012.
2011 24 November The Department of the Environment intervened saying they would pay for remediation, bringing about the effective abandonment of the case. Wicklow County Council (with officials from the Department of the Environment present), sought an indefinite adjournment of the proceedings until the remediation had been carried out. This unprecedented intervention six weeks in advance of the recommencement of final proceedings to be held on 24 January 2012 (which would have made available all the evidence of discovery in the public arena) effectively prevented the case from being determined and concluded.
2013 2nd October Nessa Childers MEP, Ireland East, announced that she would lodge a formal complaint to the European Commission over lack of remedial action at the Quarry site.
2013 8th October Bryan Doyle of Wicklow County Council announced that it planned to remove 84,000 tons of waste at a cost of €8m and the balance of the 1.1m tons would be left in situ.