A High Court judge said last week that certain alleged goings-on in a saga involving Wicklow County Council and one of the country’s largest illegal dumps were like something from the “Chicago of the 1930s”.
Barrister Peter Bland nearly fell over himself agreeing.
“Yes, judge,” he said, before adding for good measure that “waste also appears in The Sopranos”, referring to the New Jersey-based TV series starring the late James Gandolfini as Italian-American crime boss Tony Soprano.
Between 1979 and 2001, the illegal dump was operated at a quarry at Whitestown in west Wicklow.
The quarry is on a site 8.65 hectares in size, with the quarry itself being some 630,000 square metres.
The Whitestown lands are close to the N81 road between Blessington and Baltinglass.
It is on the floodplain of the Carrigower river, recognised by the State and the European Union as a special area of conservation (SAC).
The original owner was a John O’Reilly, but he sold to Brownfield in 2003. Brownfield hoped to profit by obtaining a licence from the Environmental Protection Agency (EPA) – which it eventually got – to clean up the dump.
Wicklow prides itself on being “the Garden of Ireland” but, as Bland also said, there was a period when illegal dumps, which the local council has a statutory duty to stop, were “erupting throughout Wicklow”.
Not only that, but in the case of this one particular dump, the council itself has been exposed as a customer, sending tens of thousands of tonnes of hazardous waste to the unlicensed landfill.
Wicklow County Council has yet to state its defence, but it is expected to defend itself with vigour when officials are cross-examined on the affidavits that they have lodged.
The role of the council and others will be explored further in court when a former agent of the council, Donal O Laoire, will be questioned about his role in the affair.
He will also be asked about his involvement, which was known to other named officials of the council, in setting up a private company, which he alone owned and for which he then lobbied to get the clean-up contract.
The council is accused of being a major illegal dumper, of having clear conflicts of interest, of using the courts to intimidate a former contract employee, and of failing properly to remediate the illegal dump.
It is also accused of working against Brownfield Restoration Limited, the dump’s current owner though they did not create it, by campaigning against its application for a licence from the EPA because of its own vested interest.
Environmental risks
At the end of 2011 following a 23-day hearing, the council promised to remediate the site to the highest international standards to remove environmental risks.
However, that has not happened, according to its critics, and pollution, Brownfield alleges, is continuing to flow into the Slaney, the drink-water supply river to several large towns, including Carlow and Enniscorthy.
Because of this, Brownfield has re-entered proceedings against the council. The case, which is being heard by Mr Justice Richard Humphreys, is immensely complex.
This is due in part to its longevity – the saga has been going on for more than a decade – as well as because of several parallel cases, civil and criminal, which the original illegal dumping spawned, and also the fact that an earlier civil trial was aborted.
The current civil action includes affidavits and transcripts from the earlier trial, as well as fresh material and will involve witnesses being called anew, including O Laoire.
The council is represented by James Connolly SC and Brownfield and its principal Raymond Stokes by Bland.
The trial, which began in the second week of March, is taking place in Court 23, a small room strewn with boxes of files, but which is otherwise bereft of people, apart from a couple of interested parties and The Irish Times.
While the proceedings are complex, the genesis of the case about an illegal dump that operated for more than two decades, is not.
The potential revenue generated by the cleaning-up of the dump (and forcing illegal dumpers to foot the bill) and then using the restored site as a licensed dump could be more than €30 million.
No one is entirely sure what quantity of waste was dumped there over 22 years.
Some 288,600 tonnes of waste are definitely there, but the figure may be as high as 1.14 million tonnes when contaminated soil is included .
It is certainly one of the largest illegal dumps discovered in the State and, as Bland said last week: “The party that has dumped the longest at this site is Wicklow County Council.” It was, he said, the “controlling mind”.
“Wicklow County Council smiles on this dump because it has been using it for years,” he said.
The effect of the council complicity in illegal dumping was, said Bland, to encourage others to act in the same way.
“When the gamekeeper is out poaching, who is looking after the game?” he asked.
Wicklow County Council’s illegally dumped waste appears to be mainly the detritus of road sweeping and, more seriously, tonnes of tarmac, which is toxic and must be disposed of properly if toxins are not to seep into the water table.
The council says the dump was “discovered” in November 2001 during an inspection by officials investigating a number of illegal dumps.
This “discovery” appears moot, however, as, for many years, the council had been paying invoices, issued to drivers contracted to the council, for material they had delivered to the illegal dump.
Hospital waste
Material found at the dump included hospital waste, such as used latex gloves, disposable blue clothing, shoe covers of the type used in operating theatres, masks, gowns, incontinence pads, drip bags, used bandages, surgical scissors and syringes, together with commercial construction waste and domestic waste.
There was evidence of leachate streams coming from the mounds of waste. Leachate is a chemical cocktail created when organic waste decomposes and can pollute water sources.
Such was the noxious state of the dump that an inspector who visited in November 2001, Sonia Dean, then Wicklow’s director of waste enforcement, felt nauseous, was overcome by gaseous fumes and had to be taken to hospital.
The question for the council, once the dump had been “discovered”, was what to do about it.
In April 2002, Donal O Laoire, an independent consultant who accompanied Dean to the site the previous November, was appointed by then Wicklow county manager Eddie Sheehy as an “authorised officer” of the council to make a thorough examination of the site and advise what should be done.
Clean-up contract
He was to report to Michael Nicholson, a director of services at the council and, effectively, Sheehy’s deputy, the chief figure in a working group overseeing dealing with the illegal dumps and with whom he had been working since the site inspection with Dean.
He had formed a company, initially called Carrigower Technologies Limited, later renamed Environmental Remediation Limited, of which he was the sole shareholder.
He began promoting the idea inside the council that, notwithstanding, his employment relationship with the council, it should give a clean-up contract to his own company.
“A company is set up to turn a dump into money,” Bland told Humphreys last week.
“This has the air of a solution in search of a problem,” the judge said.
“And the solution is money,” said the barrister.
O Laoire was in no doubt as to the money that could be made from cleaning up the site. At their first meeting, Raymond Stokes of Brownfield says O Laoire introduced himself saying, “Congratulations, you have won the jackpot!” in reference to the money that could be made from the site.
O Laoire wrote a report with three options for the council. The first, said Bland, was in effect to do nothing: leave the waste in situ, cover it and try to prevent leaching into the ground water.
Remediation work since carried out by the council is, in effect, this option, according to the barrister.
The second option was to export the waste for treatment elsewhere.
The third was to treat the waste where it was and create a new landfill site there into which waste from other illegal sites in the county could be imported, treated and then legally disposed of.
This was the option favoured by O Laoire and the vehicle to do it was the company he had formed, Carrigower Technologies/Environmental Remediation.
The plan “seems ambitious”, said Humphreys. Bland agreed with the judge, noting that it contained “rather grandiose statements with regard to [O Laoire’s companies’] expertise”.
“There is an element of puff,” said Bland.
According to the barrister, there was also a clear conflict of interest: O Laoire was working for the council and was an intricate part of its efforts to deal with the consequences of illegal dumping (including prosecuting offenders), but simultaneously was seeking to profit privately from the solution he was championing.
This included in dealings with then county manager Sheehy and Nicholson, who were shown a PowerPoint presentation of his plans in February 2001.
Senior colleagues
In court Bland charged further: he said that throughout 2002, O Laoire’s plan was developed, fully known to senior colleagues in the council, including Sheehy, to the point that, by the end of the year, a “heads of agreement” paper existed with the then owner of the dump, articulating how it would be cleaned up via O Laoire’s company.
“A man [O Laoire] is in collusion with the polluter,” Humphreys said, in the exchange that included the “Chicago in the 1930s” comment.
“You couldn’t make it up,” Bland said.
He also said that Sheehy asserted, subsequent to 2002, that he had told O Laoire early that year to desist with his plan – “to have nothing to do with the project”, in Bland’s words. But Sheehy did not, Bland told the judge, communicate this alleged decision to anyone.
There is “no note, record [or] diary entry” to support Sheehy’s assertion that he tried to stop the plan. On the contrary, said Bland, matters continued to proceed inside the council and “the players are Mr O Laoire and officers of Wicklow County Council”.
“My case is that Mr Sheehy’s evidence is not the whole truth,” said Bland.
The barrister makes further serious charges regarding the conduct of the council.
He claims it engineered the collapse of an earlier case to protect itself from embarrassing revelations.
At that point, the department of the environment had said it would fund remediation works to be carried out by the council.
But these, Bland said, had “made the risk to the environment worse” by mixing waste and by not adequately preventing leaching of toxins.
The remediation work was, said Bland, the “bonsai version” of what was required under Irish and European law.
‘Collateral purposes’
Following the abortive ending of the earlier case, O Laoire claimed fees from the council and issued proceedings to get his money.
The council launched a counter-claim against him, Bland told the judge, that did not “appear to have any substance whatsoever”.
“They are unsustainable and appear to be therefore for collateral purposes,” he said.
“I think it is a fair inference to say that they are for the purpose of intimidating [O Laoire].”
“But I want to know, what’s the collateral purpose: [to] persuade him to do what?” asked Humphreys.
“Two things,” said Bland. “One, not to pursue his claims for fees and, two, to act as a disincentive for him to give evidence in a manner which will be prejudicial to the interests of Wicklow County Council.
“I mean, this is most unusual. During the course of the case, the council adjourn the case, they use a procedure which they say ousts the jurisdiction of the court, and then they issue proceedings against the primary agent of investigation, their own authorised agent, in which they accuse him of professional negligence in botching the investigation, overstating the extent of waste and causing the council to be liable to costs of these proceedings against Brownfield.”
Humphreys said: “Well, that is an unusual situation certainly.”
Bland replied: “It is. I am in a case that my opponent is relying on an expert that he is suing at the same time, relying on his expertise while at the same time in parallel proceedings saying that he was incompetent and in breach of trust and had a conflict of interest.
“This is a situation which has never arisen before. And this is the same man whose evidence was relied on to convict people of criminal offences . . . I don’t want to overstate it but the waste in that dump is not the only, nor the most disturbing, part of this saga.”
