JOINT COMMITTEE ON ENVIRONMENT AND LOCAL GOVERNMENT debate -
Wednesday, 15 Feb 2006

Sawmill Operations: Presentation.

Chairman

The next item is a presentation by the Aghancon Concerned Residents Association concerning the operations of Standish Sawmills, following a request from the association to meet the joint committee.

The association wishes to discuss its concerns regarding pollution allegedly arising from the operations of a sawmills company in County Offaly. I welcome the members of the association, Mr. Bob Higgins, Mr. Paul Byrne and Mr. Tim Connolly. I thank the delegation for attending today's meeting of the joint committee. They are very welcome.

A summary of the submission from the residents has been circulated to members and, in addition, briefing from the EPA and Offaly County Council was circulated prior to the meeting. This briefing will be made available to the delegation.

Before the presentations commence I draw attention to the fact that members of this committee have absolute privilege but that this same privilege does not apply to witnesses appearing before the committee. Members are also reminded of the long-standing parliamentary practice that Members should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.

An invitation was issued to the Standish Sawmills company but its officers declined the request to attend.

Mr. Paul Byrne

I thank the committee for inviting us to speak. We wish to talk about what has happened at the sawmills and the problems arising about the enforcement of legislation. I will ask Mr. Higgins and Mr. Connolly to brief the committee on the way the sawmills have affected their lives and their locality.

Mr. Bob Higgins

My presentation will last about five minutes. Five years ago I visited Offaly County Council to ascertain if anything could be done about the noise from the mill which lasted daily from 7.30 a.m. to 2.30 a.m. the next day, representing 19 hours of noise a day. This is serious noise, sounding like a helicopter over one's head. The planning department showed me the definitive planning map and asked me to point to the location of the sawmills. I pointed out that on their map it appeared the sawmills was located in the south garden of Leap Castle. They told me three times that I was in the wrong county. The following day I mentioned this to the owner of Leap Castle. He laughed and told me that at a recent party the county manager and other council management had climbed on the roof specifically to look at the development.

With another resident, I visited the EPA in Wexford to ascertain whether it could do anything about the terrible noise. It was at this point that we had "one hell of a shock". The office was packed with notices of pollution under sections 10 and 12, notices of audits and many notices of non-compliance, especially in the use of CCA Tamalith, which is chromium copper arsenic and which was the source of the pollution. This pollution was later reported to the council by me and I was told in the presence of a witness, "If that is the case, Bob Higgins, you just have to live a day at a time". I cannot remember the official's name

Mr. Byrne

It was Phyllis Hughes.

Mr. Higgins

It is interesting that whenever the name of Standish was mentioned to planning officers, they went into retreat. One poor man used to visibly shake at the mention of the name.

CCA is a treatment for wood preservation. One of the chemicals being used is a toxic poison. Some 35 to 38 tonnes is used per year. This is a system for treatment. It should be kept looped and should never be allowed escape into the environment.

On 11 November 1999, the EPA in the persons of Dara Lynatt and Mark Kierans asked Tom Standish why the river was changing colour with CCA Tamalith. This is well documented. They were standing near the river at the time and as the river changed colour because of the deadly toxins, his cattle were standing in the river.

I have subsequently discovered that the EPA does not need to tell people about the existence of poison. The polluter informs the county council which then inform the EPA. If the polluter is operating without planning permission, he is hardly going to inform the same council that he is polluting the area.

I wrote to the EPA in protest and it cited the legislation. I note the EPA tends to report only on total chromium. I implored it to test for hexavalent chromium, which is chromium 6. It made excuses to me, one of which was that it was technically possible. I have studied this problem and I checked with a scientist, Dr. Patrick O' Sullivan, and a source in the United States. I was informed that testing for chromium 6 is a fairly simple matter and there is no problem in doing so.

The committee may recall a very famous case in America relating to chromium 6 and which resulted in a $330 million case. Initially, a reading of 500 UGs or PPBs of chromium 6 set alarm bells ringing. However, 440 yards from Mr. Connolly's farm, we had readings of 2,850. This has been reported and confirmed by the EPA. In our case not even a tiny tinkle of a bell was set ringing in alarm.

It was at this point we realised the small residents' association had become totally irrelevant and possibly disposable. Some 27,000 to 33,000 tonnes of elevated chromium lies under the site where the sawmills is operating. Dr. Gerry Browne stated that this will leach out into the area for years to come. The strange thing about Dr. Gerry Browne and that statement is that we never heard from him again.

I will finish with some quotations. I have been in touch with Professor Froines of the EPA in the USA. He is the world authority on this topic and he told me that there are at least a couple of myths concerning the action of chromium 6 that he would like to dispel. He said that drinking water tainted with chromium 6 is no different from breathing air tainted with chromium 6. He works in the office of environmental health in the US. He informed me that for the protection of public health it is safer to assume that a substance which is carcinogenic by one route may also be carcinogenic by another route. Professor Froines resigned from the EPA recently to protest at the corruption of the scientific review process. However, he agrees there is no difference between breathing and ingesting chromium 6 because the pathways are the same.

Another canard is that the stomach acids can neutralise chromium 6, but one would need to be eating and purging continually in that scenario. If one drinks water between meals there is no natural protection because the substance would eventually reach the liver, kidneys and pancreas. One fact that renders moot all the quibbling is that chromium 6 accumulates in the body until the trigger is released. It is a slow-acting poison which does not leave an apparent trail. In short, there is no safe level of chromium 6.

Some 1,548 studies have been undertaken in three major databases. It is obvious to a rational person, knowing the huge level of scientific expertise, that clearly there is no safe level. It is like playing a slot machine in Las Vegas — maybe one's number will come up, maybe it will not, but eventually one loses.

Mr. Tim Connolly

I am a neighbouring farmer of the sawmills. My dwelling is approximately450 m away from the centre of the sawmills. Since January 2002 when I first read about the contamination coming from the sawmills, my family has been buying drinking water and water for boiling as this stuff does not disappear at boiling temperature.

We also had animal health problems. We also discovered that the river was highly contaminated. I have lost cattle through ulceration which the Department has indicated is a symptom of chromium poison, although the case has not been proven.

Since 2003 we have been in contact with the Environmental Protection Agency in an effort to have tests carried out on local waters, including water in my well. Results have shown there is chromium in my drinking water well. We also had to erect a fence to keep cattle from the river. In the past two years I have needed to dredge the river for drainage purposes and to keep the water flowing in my land. I have contacted the EPA about this but it has put off a decision for the past two years. The agency is testing and was supposed to get Standish's consultants to produce options on the best way to proceed. This has not been done after two years of continual contact with the EPA. The river is starting to eat in to the bank with the result that fences on my land are starting to come down. Drainage systems are also being blocked. This has been a time-consuming process because we have been pursuing the EPA and county council to get testing and so forth done. The sawmill is permanently in non-compliance which affects our water and livelihoods.

The company received planning permission subject to 25 conditions. When it applied for planning permission, we informed the EPA and Offaly County Council that we did not believe the company would abide by the conditions. Unfortunately, we were proved correct as the company moved soil for two weeks without having it tested, despite the fact that one of the conditions in place was that soil must be tested and, where contaminated, disposed of appropriately. The company carried out major soil moving works without doing any testing. We must continually pursue this matter with the EPA and council and while the company has stopped work, the question is for how long. Our main concern is that the EPA and council do not enforce the conditions or impose penalties. I am aware a court case was taken last year but the outcome was a fine of €2,500, which is less than it costs my family to buy in water. We seem to be getting nowhere with the Environmental Protection Agency and Offaly County Council.

Mr. Ciaran Damery

I apologise for being late. It is possible that some of my comments have already been made. Approximately four years ago a few other residents and I obtained legal opinion on the position regarding this illegal sawmill which had been operating for seven years. We also sought a section 160 order against the sawmill. It was most extraordinary that the premises did not even appear on Offaly County Council maps. We had bizarre meetings with officials from the council at which we were shown maps and asked where precisely the sawmill was located. We indicated its location on a map only to be told by one official we were wrong and asked whether we were in the right county council because no premises appeared on the map. I am not exaggerating.

We sought legal opinion and have been before the High Court on 34 occasions without getting a hearing. Is this a failure on our part as citizens? We took the legal route and abided by the law at all times. The law, particularly its enforcement side, took a negative attitude to us to say the least. Several of us have been in court on a number of occasions. For example, I was charged with intimidation, although the charges were annulled on appeal, and a number of local residents have faced more than a dozen court summonses. Fortunately, all charges were found by the court to have no substance. I have been in the Four Courts 16 or 17 times and each time the case has not been heard for some reason.

The buck must stop somewhere. Standish Sawmills has broken planning law and, I believe, other laws. It has ridden roughshod over local people, including Tim Connolly who lives next door to the premises. Even today, council officials entering the company's land to make queries are ordered off and abused. When I went to take evidence in the company of an environmentalist sent by my solicitor, my car was rammed by one of the owners of the mills.

Chairman

I must ask Mr. Damery not to name individuals.

Mr. Damery

The individuals in question appear to have been given considerable leeway in the area of planning — they did not obtain planning permission — and enforcement, of which there has been none. The company has been ordered to make changes but is still riding roughshod over decisions. It has not taken into account the conditions laid down under a new planning decision. This case must be one of the few to come before An Bord Pleanála in which a company refused to close down despite emphatically losing its case. The ruling stipulated that it had no right to be in its current location. Moreover, no one insisted it close down.

At the hearing, which took place in Offaly County Council offices over three days, the company claimed to exist prior to 1963. It did not exist before 1993. I remember it as a little tin shed when first constructed but it has undergone massive development since. It mushroomed into a giant enterprise which caused inconvenience and considerable damage and danger to near neighbours. The company ignored the decision of An Bord Pleanála and put an advertisement in a newspaper indicating it was business as usual. A senior inspector of An Bord Pleanála then went on site and again recommended that the sawmill be closed. In its wisdom and despite all the illegality and breaches of planning law, An Bord Pleanála decided last October, for pragmatic reasons, to give the company planning permission subject to certain conditions. It is a strange case which raises many questions.

Chairman

I will take a few questions. A number of members are offering.

Deputy Cuffe

I compliment the delegation on the graphic picture it has painted. I am appalled by what I have heard. I received information from some members of the delegation prior to today's meeting. We now know that this company operated without a licence from the EPA for a long time and without planning permission. Although permissions have been granted, it appears from the photographs we have seen today that the company is flagrantly breaching the terms of that EPA licence. I am appalled by the evidence.

This is a test case for the planning laws, as to whether communities can successfully engage with the planning system through the EPA and local authorities. It shows that it is extraordinarily difficult for communities to tackle the might of industry that has operated without permissions in the past. I would like to think that bringing this community in here today will assist them in the actions they are seeking from the local authority and the EPA. I have been in direct correspondence with both bodies myself. Their response has improved recently but it appears that the company is still operating outside the terms of its licence. This committee should express its concern about that.

Does the delegation consider the problem lies with the EPA, the local authority or the legislation? Do we need to change the legislation to make it easier for individuals and communities to fight their corner? The groundwater in this area is being polluted, unauthorised development has taken place and there have been breaches of an EPA licence. Does the fault lie with all three — the EPA, the local authority and the legislation — or is it more the fault of one than either of the others?

Mr. Byrne

It lies with all three. People must adhere to the legislation. The local authority and the EPA are supposed to enforce the legislation. In both cases the county council and the EPA have failed to enforce the legislation. That is evident from the notice of non-compliance and the fact that the county council had two planning injunctions against the sawmills directly and against three quarries in the area, all of which date to 2001 or 2002. The situation is a long running one.

Some leeway would have been given to local authorities in terms of a honeymoon period to adopt the legislation when the 2000 Act came into play, but four or five years of non-compliance is not good enforcement. That is really where the problem lies. Elements of the legislation are bad in terms of control but the enforcement to back this up is also poor.

Deputy Cuffe

The company declined to appear before us. It sent us a fairly short letter suggesting it is working with the relevant authorities to ensure compliance with both the licensing and planning requirements. The county council's view is that the company is working towards compliance. Is that Mr. Byrne's view?

Mr. Byrne

The company may be working towards compliance but it is up to the council to ensure compliance is achieved. The council is reluctant or wary to force that matter. Photographs were shown of the sawmill operators in an illegal quarry which was closed by injunction in 2002. The county council suggested to one of the residents to take their own injunction action because the council does not want to take it. The council wants residents to take their own civil action under the planning Acts. That is not good enforcement.

Deputy Cuffe

Mr. Connolly gave a very graphic description of his concerns about farming in the area.

Deputy Grealish

I welcome the group. I remember watching the "Prime Time" programme. When did the company first operate? Was it pre-1963 or after that? Were other companies involved also and did the expansion arise from that? I see that it operated a number of quarries.

I come from a farming background and I was interested in what was said by Mr. Connolly. Have any cattle died from contamination, and was it proven through autopsy that the cause was groundwater contamination?

Mr. Byrne

The Ordnance Survey maps show that nothing was there in 1973. One can take it that there was no pre-1963 context. From anecdotal evidence, residents say the development started after 1990, perhaps about 1995. The EPA first approached them in 1997 and requested that they apply for an IPC licence. The company — T. and J. Standish Roscrea Limited — was incorporated as a legal entity in 1996. At the oral hearing it was described as a backyard or local indigenous industry. The council maintained at that hearing that it did not want to see it going out of business. It has gone from being a local indigenous backyard industry to being a——

Deputy Grealish

How many people does it employ?

Mr. Byrne

It was nine in 1997 when it applied for a licence. The sawmills have made claims ranging from 70 to 140 in terms of secondary industries and so forth. The residents reckon it is about 25.

Chairman

Have many cattle died?

Mr. Connolly

I have lost cattle. The last one that died was in May 2003, shortly after I had learned about the contamination. Prior to that I had lost a few cattle each year going back to 1998. I asked my vet about having an autopsy carried out on the cow that died in 1993. The cow died on a Friday and he said she could be gone a bit stale by Monday. For some reason or other he was reluctant to have an autopsy carried out.

When the cows first went out to grass that year I fenced them off from the river. Therefore, they had no access to it. I have not had any animal deaths since May 2003.

Deputy Grealish

Is the water that Mr. Connolly uses well water or is piped water brought in to the houses? Has an improvement been evident since An Bord Pleanála and the EPA granted planning permission and a licence? According to the briefing note we received from Offaly County Council, it is monitoring the situation and the company is complying with the planning conditions. The note also states that a mistake was made regarding water contamination and that the water in the wells in now safe.

Is there co-operation between the residents, the company and the local authority to ensure everything works in an orderly way?

Mr. Connolly

The sawmills has to comply with 25 conditions laid down by An Bord Pleanála. The first condition related to the front wall and the entrance. After that it was to take soil samples and give Offaly County Council and the EPA a fortnight's notice before commencing any excavation. That did not happen, as the company began to excavate without taking any soil samples. When we informed the county councils, its officials came to the site and stopped the work, possibly on a Wednesday. A written notice had been issued the previous Monday but more diggers and bulldozers were working away the next day without any soil test having been done. The county councillor who visited the site and to whom I was talking said the objectors must have been on to us again. I could not see any improvement.

Chairman

What about the question on the origin of the water?

Deputy Grealish

Is there a group scheme or are all the houses operating from private wells?

Mr. Connolly

There is a group scheme on the other side of the river but all the houses on the sawmill side have private wells.

Senator Norris

Considering that I am not a member of the committee, I am grateful to the Chairman for the opportunity to contribute to this debate. This is a matter I have attempted to raise on many occasions in the Seanad but I have always been frustrated. It seems there is a notable reluctance on the part of the central authorities to deal directly and honestly with the issue. In that context, it is very important that this committee has allowed it to be ventilated this afternoon.

The case is very worrying. As I was attending the Order of Business, I did not hear all the evidence but I am fairly familiar with it. There is a very long history of totally unauthorised retention. There used to be classic cases in Dublin in which people just built something and applied for retention permission by creating facts in the belief they would get away with anything. This involves an extremely bad planning principle.

What is happening is a scandal replete with nonsense, irony and farce. Having had a quick look at my large, fat file, I came across a couple of noteworthy points, the first of which concerns a report in The Irish Times of 26 May 2005. It states:

The Environmental Protection Agency (EPA) has decided to grant a new pollution control licence to T&J Standish Sawmills in Co Offaly. The EPA said, however, that it would go ahead with a prosecution against the sawmills in Roscrea District Court this morning for breaches of the company's current integrated pollution control licence.

Is this not an absolute farce? I invite comment on it. The EPA is granting a licence to a company that is simultaneously being prosecuted for continuing breaches. It is absolute rubbish to talk about moving towards compliance. This is the futile constructive-engagement argument.

Something must be done about this matter as it concerns plain, clear and unambiguous initial decisions on environmental grounds and on the grounds of visual amenity and serious pollution with chemicals, such as chromium 6, which formed the basis of the famous Hollywood film "Erin Brockovich". If groups such as the delegation before us are not firm and do not make clear recommendations to the Government, there will be an open invitation to every cowboy in the country to bulldoze his way through planning legislation.

I believe Daniel O'Connell spoke of his capacity to drive a coach and horses through legislation, but it is quite clear that a coach and horses have been driven through the legislation in question by a firm that started up small and did very well. More power to it for doing very well. We should encourage its entrepreneurship, but in the right place.

Any auctioneer will tell one the value of a house depends on "location, location, location" and, in this context, the problem with the company in question is not that it is working very hard. It has become the largest supplier in the country of certain kinds of wooden paling and fencing. Good for it, but it should not be in its current position. It is destroying the aspect of Leap Castle, a very historic site, it creates pollution and is now reopening a completely illegal quarry. It obviously does not give a damn. It has been shown by public representatives at local level that it does not matter twopence what it does because it will get away with it.

Mr. Higgins

The authorities and EPA are frightened of the company. They go in fear of the Standishes. On one occasion, an acoustic engineer presented himself on a public road to take noise measurements and they came out and beat him up and threw his equipment over the wall. I have been run over and we all have had death threats.

Senator Norris

Has Mr. Higgins made complaints to the Garda?

Mr. Higgins

I am awfully sorry but I have lost faith in the instruments of national and local government, and I have lost faith completely in the Garda. After five or six years of these kinds of occurrences, I moved out of my house — I cannot stand it any more. I am possibly the nearest to the Standishes in terms of road access and the intimidation is too much to bear.

Senator Norris

The delegation made some very serious points and it is very sad that people living in the community should have lost faith so disastrously in local authorities and the institutions of the State. It is very important that this committee exercises whatever responsibility and power it has because the local authorities and agents of the State entrusted with regulating and supervising this legislation have failed. It is a disgrace and if it is allowed to go unchallenged, anybody will be able to do anything in this country as long as he or she has enough money and connections.

Am I correct in believing there is local sensitivity because people feel the company is providing employment? This is an argument to which politicians at local level are notoriously susceptible. I assume the local politicians involved in this case are susceptible to some degree. Will the delegates comment on this?

The members of the committee and I, as members of the public, would not wish to close down a business that is doing profitable work, employing people and generating income for the community. Is it feasible to move it somewhere else? If the council had good intentions and wanted to be constructively engaged, could it not make another site available for the operation that would not carry these attendant dangers, bearing in mind that local authorities usually have a landbank?

Mr. Byrne

On the comment about coaches being driven through legislation, the sawmill representatives have been quoted in The Irish Times as saying getting planning permission is like getting a driving licence in that it is very easy.

Senator Norris

They did not even get it in the beginning — they failed.

Mr. Byrne

That was in 2001 or 2002. It is very true.

Employment does not feature in the Planning and Development Act 2000 and therefore has no part to play in the planning process. If one is to engage in development, the Act stipulates it must be suitable to the area in question, sustainable and subject to proper planning. In the case in question, there has not been proper planning and the business is not sustainable. Employment and the economy do not enter into it because——

Senator Norris

The problem is that they enter into the calculations of the council.

Mr. Byrne

All politics is local. The industry could be moved and the only obstacle to doing so concerns whether another licence could be obtained from the EPA. If the company were moved to an industrial area, would it cause problems for more residents? There are only six or seven residents affected directly at present. If the company were moved, would it then cause problems for hundreds of residents? It is not a question of what the company does but the manner in which it goes about it. Its attitude is the problem. At one point it felt that if the river was in the vicinity, it could be polluted.

As regards public confidence in the authorities, section 255 of the Planning and Development Act 2000 allows the Minister for the Environment, Heritage and Local Government to appoint an independent commissioner to review any decisions made by a local authority. The former Minister, Deputy Cullen, and the current Minister, Deputy Roche, were both asked to appoint an independent commissioner and both refused. The former Minister stated an independent commissioner would only be appointed in extraordinary circumstances. I do not know whether the circumstances in question are regarded as such but they are to me. Public confidence in the EPA and Offaly County Council has been shattered.

Senator Norris

The committee might consider making a recommendation on the establishment of an independent commissioner. I make that suggestion in all humility as somebody from outside this debate.

Chairman

We will return to that proposal when we are concluding our deliberations.

Mr. Connolly

The Senator asked if it could be moved but contamination is the major problem. Offaly County Council has confirmed that there are 30,000 tonnes of contaminated soil. I have been with the county council and it has granted planning permission. When I asked what would happen to this soil, the council stated it is a matter for the EPA and that the EPA had stated it could be concreted over and treated. The EPA then claimed that it never said such a thing. That leaves me worrying about both of them. The EPA is issuing a new licence and Offaly County Council has granted planning permission, but neither knows what will happen to this contaminated soil. The sawmills come and move it away without permission.

Mr. Damery

When we first attended the High Court in June 2002 to seek an injunction against the sawmills, Mr. Tom Parlon opened a pencil line in the sawmills the following day.

Deputy Cuffe

I hope that the company will follow the Texaco precedent in Belgium and remove the contaminated soil from the site. That was also the recent decision with Roadstone in Blessington. If land is significantly contaminated it should be taken away, although the company seemed to be pushing it around the site this morning with bulldozers. I am concerned about that. We should consider Senator Norris's suggestion.

Mr. Byrne

Changes must be made to the legislation. There is separation between IPC licensing legislation, the Protection of the Environment Act 2003 and the Planning Act. It should not be possible to get an IPC licence without planning permission. The Minister in a letter of 10 February 2005 stated that it should not be possible to have an IPC licence without all statutory legislation in place. That has not happened and the European Commission is looking at it. The residents feel Europe is the only place they can go to seek changes and recompense for what has happened to them.

As far as I know, the EU is investigating Ireland on a number of cases and another petition may be coming through that deals with this subject. While nothing has happened at local or national level, there will be action at European level. Whether that action will force the Oireachtas to change legislation is a moot point.

A major problem is that the courts will not enforce an injunction on an illegal development that has no planning permission. Section 162 of the Planning Act states that the High Court shall neither stay or withdraw an application for an injunction by virtue of the fact that an application for retention of permission has been made, yet there have been 34 applications to the High Court and still no injunction. The High Court seems to be in a position where when a person takes an injunction, with the resultant financial cost, it will adjourn it until a decision to grant or refuse has been made or an appeal lodged to An Bord Pleanála. Time is being wasted while illegality is under way and pollution is being discharged. Something must be done about that and the High Court and Circuit Court must realise that it is necessary to comply with that section. It is detailed legislation.

The other legislation that leaves us hamstrung is the Protection of the Environment Act. The EPA can only take cases to the District Court; it cannot take a case directly to the High Court or Circuit Court. That must be changed. The case in Shannon that was on the news today was taken in the Circuit Court, which is the only reason the fines were so high. The average fine in the District Court last year was €2,508 in the 17 cases taken. That is derisory. There must be a deterrent and money serves that purpose. The companies will not comply with anything else if they are not hit financially. There should be a link between planning, environment and corporate enforcement, where if a company is found guilty of pollution, it should affect its corporate status and its directors should be debarred.

In terms of prosecution, the EPA Act allows for people who are fit and proper persons to be granted a licence. Prosecution debars from being a fit and proper person but the EPA can decide if a prosecution should be taken into account. It is poor legislation.

Chairman

The delegation has raised matters of serious public concern and we appreciate the witnesses taking the time to brief us on the issues involved. All the points made are in the submission and I propose that we pursue it with the Minister for the Environment, Heritage and Local Government, highlighting the request for the appointment of an independent commissioner under section 255 of the Planning and Development Act 2000 and the need for legislative change. I assure the witnesses that we will actively pursue this, starting by contacting the Minister and seeking a definite response to the submission.

Mr. Byrne

The Minister recently wrote to us that there are no proposed changes to the Planning Act. I hope that will change.

Chairman

Legislation is an ongoing process. Could we have a copy of the Minister's letter to the group?

Mr. Byrne

Yes.

The joint committee adjourned at 4.10 p.m. until 11.30 p.m. on Wednesday, 22 February 2006.