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JOINT COMMITTEE ON THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT debate -
Tuesday, 25 Jan 2011

Annual Report 2009: Discussion with EPA

From the Environmental Protection Agency I welcome Dr. Mary Kelly, director general, and her colleagues, Dr. Dara Lynott, Dr. Matt Crowe and Mr. Carl Phelan who are appearing before the committee in respect of the annual report. The director general, Dr. Kelly, has informed the committee that she has forwarded files to the Director of Public Prosecutions in respect of the Kerdiffstown landfill. That is for the information of members of the committee.

I remind members of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person or persons outside the House or an official by name or in such a way as to make him or her identifiable.

By virtue of section 17(2)(l ) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. If witnesses are directed by the committee to cease giving evidence on a particular matter and they continue to do so, they are entitled thereafter only to a qualified privilege in respect of their evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or entity by name or in such a way as to make him or her identifiable.

I invite Dr. Kelly to make a presentation to the committee. I apologise for the small number of members present. Events are taking over very rapidly. The presentation today and the questions and answers might be less extensive and intensive than on another week. In any event we were keen to have the delegation appear before the committee, as we do every year on the occasion of its annual report. I invite Dr. Kelly to proceed.

Mr. Michael Fitzpatrick

Chairman, you read out a letter from Dr. Mary Kelly in regard to the Kerdiffstown landfill. We have just heard a very disturbing account of what is happening there, particularly in regard to site security, the lack of a caretaker, pollution and the possible dangers arising therefrom. While a report may be sent to the DPP and there may be legal issues pending, this is a very serious issue. We four Deputies from Kildare know it is extremely dangerous and something must be done now. There is no point in saying we will wait until all these court cases are heard and then we will do something. It will be too late. We were told this morning that a current fire at the site cannot be put out by the conventional fire service in Kildare. Something extraordinary will have to be done. That fire is creating pollution as we speak. We do not know what other types of pollution are being created. I appeal to the Chairman to allow Dr. Kelly to give some succour to the people from Clean Air Naas who are still in the Visitors' Gallery. I do not want her to say anything that will affect court proceedings but I would like it if she could tell us what plans the EPA or the liquidator has for the immediate future. I know she will speak about funding, and perhaps that is the issue, but please let us know what it is.

I am not having any debate, because in fairness to the Environment Protection Agency, it is here to discuss its annual report. I want to hear the opening presentation and will take some questions on it. In my opening remarks, I referred to a letter received from Dr. Kelly. While members will have an opportunity to comment, I want to hear the opening presentation from the EPA before getting into any detailed discussion. After that, there will be an opportunity.

How long is the presentation expected to take?

Dr. Mary Kelly

It will be more than ten minutes because it is the result of the annual report. It will take 15 to 20 minutes. I will try to get through it as quickly as I can.

There is the question-----

One cannot gazump the-----

The sooner we start the sooner we finish. That is all I will say.

I am aware of that. I am not a member of the committee.

I was not referring to that.

The question is whether the representatives of the EPA were aware of the submissions made by Clean Air Naas earlier. Has the Chairman overseen-----

Dr. Kelly can address that issue when we allow her make her presentation.

We have a time difficulty, not necessarily the one to which the Chairman referred earlier. The issues raised were fire, air pollution, water pollution, security, reports to local authorities being delayed and being censored when sent out, EPA powers to move on to the site to act now and funding for the cost of the remediation required.

I will ask Dr. Kelly to proceed with the presentation. I am aware she has a detailed presentation but given the week that is in it, she will understand that people are more anxious about the time element. I invite her to adjust her presentation accordingly.

Did the group overhear the presentation earlier?

It is up to Dr. Kelly to answer that question. I invite Dr. Kelly to proceed. I apologise and given the week that is in it, some people thought the meeting should be cancelled. Certainly that was not our intention. I understand people have time constraints they would not otherwise have had.

Dr. Mary Kelly

Before I start the presentation, I should say we were invited to appear before the committee to speak about our annual report so we were not particularly prepared to make a presentation on the Kerdiffstown landfill. That said, we are here to be as helpful as we can to the committee. We will certainly try to answer some of your questions. The only reason we put that letter to the Chairman and members of the committee in advance is that we have a file with the Director of Public Prosecutions. We have put a good deal of work into it and we certainly do not want anything that would be said in public to compromise our case. Having said that we will try to be as helpful as we can.

Did Dr. Kelly and her colleagues overhear the earlier debate?

Dr. Mary Kelly

We did not.

Would Dr. Kelly have thought it important to overhear it?

Dr. Mary Kelly

I do not particularly want to-----

Please-----

Dr. Mary Kelly

We came here to-----

There is five or ten minutes gone. We would be half way through the presentation if we had started earlier. Please proceed.

Dr. Mary Kelly

I thank the Chairman.

I need to say this. As Dr. Kelly can see from the people sitting in front of her, they are all Deputies from the constituency. We do not really need to deal with the EPA report.

Dr. Mary Kelly

Mr. Chairman.

That is what Dr. Kelly was asked to do.

I do want-----

It would be most helpful if Dr. Kelly could first deal with the questions we have just put to her about the Kerdiffstown issue and then deal with the report.

Out of respect for the activities of the committee, the EPA was invited here with no reference to the Kerdiffstown Stud or Kerdiffstown dump. Deputy Fitzpatrick who is a member of the committee, knowing that the EPA was appearing before the committee, asked if we could have the presentation in advance. We have agreed to do that. We do want to hear a short presentation from the EPA. In a few minutes we will deal with exactly what the Deputy said.

Dr. Mary Kelly

Mr. Chairman, if it is helpful, and I do not know whether it is, we are completely au fait with what is going on at the Kerdiffstown site. If it is helpful to the people who are here, who are all from the constituency, and to the residents who have come to make their presentation as well, we can deal with the Kerdiffstown issue. If it is also helpful we can make this presentation to another committee at another time or we can continue-----

Will Dr. Kelly agree to publish it?

Dr. Mary Kelly

Absolutely.

Perhaps we will take-----

Dr. Mary Kelly

We want to be helpful on this issue.

Dr. Kelly has more control of the Chairman.

Okay. I do not want to put undue pressure on Dr. Kelly.

Dr. Mary Kelly

I thank the Chairman. Having agreed to do that, the committee will have to take account of the fact that we did not prepare a presentation on that site today. However, because of the nature of the issue on the Kerdiffstown site it is a major problem and everybody in the EPA is au fait with what is going on out there. I will ask my colleague, Dr. Dara Lynott, the deputy director general of the EPA and the director of the office of environmental enforcement, to make a short statement. He is well known to the residents in the Visitors’ Gallery because he has met with them several times. If the Chairman agrees, I will ask Dr. Lynott to speak about the Kerdiffstown site. We will proceed as best we can within the constraints I have outlined, namely, that we have a case awaiting the decision of the Director of Public Prosecutions and, second, we were not invited to come to a debate on the Kerdiffstown site.

That is fine.

Dr. Dara Lynott

As the director general said, we are trying to steer a course between what we can say and what we will rely on in terms of making a direction in the future. To reiterate, the EPA is trying to secure the remediation of this site in the shortest possible timeframe. That is the principle behind all the work we are trying to do. The case goes back to 2003 when we licensed the company in question to dig up 300,000 tonnes of waste, which was previously deposited before the EPA licensed the site, on an annual basis over an eight-year period. That was the basis on which the EPA issued a licence in respect of the facility.

When it became apparent that this was not being done, the EPA sought and received High Court injunctions against Neiphin Trading Limited and all associated companies to prevent further waste from coming on to the site, to require it to install landfill gas and leachate infrastructure and to remove all previously deposited waste. The High Court confirmed these orders in October 2010 and granted a further mandatory order against Neiphin Trading Limited to clean up the site. These orders were necessary to protect the taxpayer as much as possible from paying for the clean-up of the site contamination for which Neiphin Trading Limited bore responsibility. That company is now in liquidation, Dean Waste Company Limited is in receivership and Jensoph Limited, the owner of the site, is not actively trading and has no assets. The agency is seeking fall-back orders against the directors of these three companies, requiring them to comply with the court order. If they fail to do so, the agency will seek orders against the directors personally.

As required by European law, the EPA collected all available evidence and submitted a file to the DPP in November 2009. We are awaiting direction on whether a prosecution on indictment should be taken in this case. In parallel with all these legal actions - and I do not want to give the impression that those are the only action the EPA is taking - we have commissioned a report on the remediation options for the site, along with the associated costs. This information formed the basis for the options and costs analysis presented to the High Court on the basis of which the court could then make the orders it made in October 2010 and use them subsequently in any potential orders against directors of those companies.

The EPA is mindful that the taxpayer should be protected and that any move by the State to fund a clean-up should not set a precedent for any other contaminated site operators. The agency has, by going to the High Court, confirmed orders against Neiphin Trading Limited for payment for the clean-up. Where there is a failure by the company to carry out the work ordered by the High Court, the EPA is empowered to do the work and to recover the costs from the company. However, Neiphin Trading Limited is in liquidation and has no assets, and the recovery of the costs is problematic in view of that insolvency. The EPA does not have funds to remediate the site. This is a complex issue and the EPA is in discussion with the Department of the Environment, Heritage and Local Government on funding and remediation options. The aim of all concerned is to clean up the site as quickly as possible, and the EPA sees itself as having an integral role in this regard. When we have concluded those discussions, which bring together all the complexity we are trying to deal with in terms of precedence, DPP direction and High Court orders, we will then be in a position to lay out a plan of funding and remediation for the site.

With regard to the environmental issues in respect of this site, the report, of which the residents have a copy, indicates that leachate is not a short-term issue. There is contamination of ground water under the site, but it pretty much remains within the boundaries of the site. Recent sampling indicates there has been no movement of leachate, but we anticipate that if the remediation of the site does not occur, it will have an effect into the future. We have no idea when that will happen but given that it has not moved in six months we do not expect a short to medium-term reaction.

There is significant odour associated with the site as evidenced by the hundreds of complaints received by our staff from residents. The residents are being impacted significantly in this regard. In terms of the air pollution associated with the site, we are taking air monitoring samples. All of the monitoring parameters are below the lower thresholds that would cause a health impact. That is not to say that people are not being impacted in terms of anxiety, frustration and nuisance; we fully accept that.

In terms of the reports that we are censoring, we have endeavoured to share, and have shared, all of our environmental data with anybody who has asked for it. What we have kept back is the remediation options and costs. We are trying to steer a course between our engagement with the High Court, what the DPP will direct and the options in regard to stating a precedent for any future contamination of land. We are keeping those options open until we can form a final conclusion on how the funding and remediation of the site should proceed.

In terms of our powers to act now, I have already indicated that while the EPA has the power to enter this site and to do the work, it also has the power to recover costs from Neiphin Trading Limited. However, Neiphin Trading Limited is bankrupt and the EPA does not have funds in its allocation to deal with the remediation of the site. As such, there is an important issue for the Department and for the State as to the position regarding private entities which create a liability for the public and which have an expectation of the taxpayer funding the necessary clean-up.

Will Dr. Lynott indicate where the deficit in the system has arisen, whether in regard to legislation or otherwise? If a local authority grants planning permission to a developer it requires a bond from that developer. When a school is being built the board of management will secure a bond from the builder. When the EPA issues licences does it have legal authority to secure a bond from the company to whom the licence is issued? If so, was that done in this case and how much was involved? Can any such bond be called in?

Dr. Dara Lynott

The EPA is often put in a situation where new legislation comes on the Statute Book which deals with existing facilities. This was the situation in 1996 when the first Waste Management Act came into play, 20 years after the waste framework directive required all landfill sites to be regulated in accordance with European legislation. When the agency deals with new activities it is required to seek bonds from the company operating the facility. The EPA granted a licence to this site in 2003, at which stage 1.75 million tonnes of waste had been deposited on the site without any authorisation.

The EPA issued a licence regardless of that fact?

Dr. Dara Lynott

We had to issue a licence under European legislation. The licence required the licensee to remediate and carry out after care regarding the illegally deposited waste.

I am utterly baffled. Dr. Lynott is saying that 1.75 million tonnes of waste was illegally deposited at the site, yet the EPA proceeded to issue a waste licence to the company concerned.

Dr. Dara Lynott

At that point, the objective was to avoid placing the licensed site, with 1.75 tonnes of illegal waste, in the hands of the local authority.

Was the 2003 licence the last licence issued for the site and was there a bond attached to it?

Dr. Dara Lynott

The bond was included for the lined landfill. The agency's decision was made on the basis that 300,000 tonnes of waste would be excavated on an annual basis, processed and placed in lined cells. For the two to three years after the licence was issued, that is what was done. Nearly half the site was excavated of the old waste and lined cells put in place. At that point, as required by the licence, the licensee was to come to the agency to seek permission to use the lined cells, which we granted on the basis of ensuring 1.3 million-----

Did the agency have to grant the company permission at that stage? Does the licence last forever?

Dr. Dara Lynott

It lasts either until it is revoked by the agency or the company surrenders it.

Am I correct in saying that the EPA did not revoke the licence because there might have been considerable cost for Kildare County Council in cleaning up the problem? Is that what Dr. Lynott is saying? I am not an expert in this area. Dr. Lynott stated that the Department and the EPA are concerned a precedent would be set if they were to go down this road. I thought the EPA was an independent agency? Does it do what the Department tells it? Is the agency just a puppet for the Department? It appears to me that while the EPA is an independent statutory agency it consults with the Department before making big decisions such as this. I hope the delegation can understand my line of questioning.

Dr. Mary Kelly

I understand exactly what the Chairman is saying. Perhaps I can come in at this stage. The EPA is an independent agency, but we have no funding to remediate. We have the power to contract someone to go on to this site but we have no funding. Our funding is either earned income, which the agency earns through licensing, or by way of Exchequer grant. Our Exchequer grant does not and has never included a contingency fund for clean-up of sites needing remediation. Our only discussion with the Department has been by way of informing it of the need for provision to be made in the next Vote for us to remediate sites. If we are to go on to this site and remediate it we will need money to do so. The board of the agency has not yet made a determination on that matter. The actual options for decision will shortly come before us. No decisions have yet been made and we will not consult the Department in regard to the best option. We will tell it what the board of the agency recommends in terms of remediation of this site and what amount of funding will be needed to do that work, if that is the case. If it is the case that the agency decides to pursue the companies, who appear to have no money or assets, that is a separate decision. If we were to decide that we need to go on to that site or to charge an agent to go on to that site on our behalf then we will require funding to do so. The only place we can get that funding is from the State, through the Department of the Environment, Heritage and Local Government. That is all we are asking of the Department.

I accept what Dr. Kelly is saying. Given that the agency does not have sufficient funding of its own is there not a greater responsibility on it to ensure that all licences issued are more than adequately bonded?

Dr. Mary Kelly

Yes. Perhaps I can address that point.

Given that the agency has no resources, it should ensure licences are more adequately bonded.

Dr. Mary Kelly

In fairness to Dr. Lynott, he did not get to address that issue.

Perhaps Dr. Kelly will talk us through the bond issue.

Dr. Mary Kelly

Yes, I will do so in a moment. I can understand people are shocked to hear that this site had 1.7 million tonnes and we licensed it. As pointed out by Dr. Lynott, the agency commenced licensing waste facilities 20 years after the European legislation should have come into effect. As such, the agency was charged with licensing in retrospect. There were approximately 100 unlicensed and unregulated dumps in Ireland at that time, most of them belonging to local authorities. Many facilities closed when they saw the conditions of the licences which the EPA was determined to issue. The ones that remained, approximately 30, most of which are not new, already had waste in the ground. We had to issue a licence to regularise what was going on. The majority of those sites have increased their standards and are now operating to what we consider to be a good standard. All facilities, including local authority and private sector operators, must have a bond. I will defer to Dr. Lynott to explain how the agency manages that.

We will take a few questions from members first.

Dr. Mary Kelly

Perhaps Dr. Lynott could first explain the situation in relation to the bond. I would like the joint committee to understand that process before we go any further.

We have an environmental protection-----

Dr. Lynott will respond on the bond issue, following which Deputy Stagg can come in.

Dr. Dara Lynott

The submission from Neiphin Trading Limited, NTL, to the EPA was that the facility would generate revenues estimated at €20 million per year from landfill tipping or user fees, which could fund the development of the facility; cash reserves from the parent company would pay for capital and operating expenses; closure and after care costs for the lined facility would be provided by funds set aside annually for this purpose and a proposed €1 million per annum to be lodged in a deposit account. A financial guarantee of €1.3 million from Allied Irish Bank was received in April 2005 on behalf of NTL. The EPA approved the use of the lined landfill subject to putting in place the required financial provision before the expiration date of the bank guarantee. The lined landfill was not used and the bank guarantee was not renewed.

In 2008, following receipt by the EPA of statements from all residents - the company was aware evidence was being collected for a criminal case - the company commenced use of the lined facility without permission from the agency. At that stage, the matter was already moving towards the High Court and the Director of Public Prosecutions.

What about monitoring?

Dr. Dara Lynott

This is one of the most inspected sites by the agency. It is one of the most difficult in terms of non-compliance. We have collected evidence and it is now up to the DPP to make a determination on criminal culpability.

This matter has been ongoing for some time and has become acute in the past two years. As I understand it, the EPA was established to ensure this type of thing could not happen. That is the purpose of its existence. I hope the delegation do not mind my saying that the agency appears to be fairly useless. The smell from the site is as bad as ever. The leachate is as bad as ever and gases are being emitted from it. The site is akin to a wide open arena for every type of scavenger one can think of from rats to birds and people with lorries who are setting fires. The EPA does not appear to be taking any role in preventing what is happening. I would have expected it to at least erect a fence around the site and employ a security man to keep people off the site. That has not happened. The site is wide open and has no security.

I appreciate that the EPA does not have the funding to do the job required and that it has now put together a case in this regard, with which I am satisfied. I would like to see the EPA's plan for remediation. I would not like to be told, as happened previously, that it is a secret. I do not like taxpayers' money being given to bodies whose reports are secret. We only got the agency's previous report on the condition of the site by chance. I presume the next report will be the remediation report. That report should be made available to the joint committee, local authority and residents' representative group as soon as it has been completed. Also, it should not be censored.

My final question is for members of the joint committee. A senior operative in the EPA left the agency and took up the main position at this dump. I am interested in hearing if the joint committee can prevent this type of rogue behaviour of gamekeeper turning poacher. This matter needs to addressed by Government through the joint committee.

Perhaps the EPA will provide us with a copy of the remediation plan. I understand the agency cannot show us the options or costings for remediation because the file is with the DPP. We would like to see a plan at the earliest opportunity so that the Department of the Environment, Heritage and Local Government can allocate the money.

The representatives of Clean Air Naas made five requests in their presentation. The first is an immediate clean-up of the site, the cost of which they estimate at €30 million. The site also needs to be secured to reduce the possibility of malicious fires. Can this be done immediately? The leachate from the site is equivalent to the sewage outflow of 100,000 people per annum. The site should be fenced at the earliest opportunity because the level of theft is unreal. I saw one photograph of a person standing on top of the tower wall at the site and acting as a lookout.

A number of issues alarm me. I had expected the EPA to be aware this discussion would take place today. I doubt that it came unprepared to address the issues arising.

In fairness, the witnesses were not unprepared.

Surely it would have been beneficial for the EPA to hear the submission made by the local complainants. When did the EPA receive the first complaints and what action did it take in response to them? Did it receive complaints from the local authority or residents? Public representatives certainly received complaints from residents.

When it became obvious that the site was not being operated in accordance with the licence, what action was taken, by whom and on foot of what report? What reports have issued in respect of the operation of the site? How many have been made partially public? I raise these issues because I put a number of parliamentary questions to the then Minister for the Environment, Heritage and Local Government regarding the degree to which air and water pollution was being monitored at various locations in County Kildare. How did the EPA respond given that the Minister stated in response to most of my questions that the matters were the agency's responsibility? I am sure all the public representatives in the area were raising these issues on behalf of residents.

The EPA has no funds to do anything other than act as a statutory authority. Why did it not take immediate action to preserve the site, protect the environment and ensure the issues raised by local complainants were addressed at an early stage once it became obvious that the operators were not meeting the terms of the licence issued to clean up the existing landfill? The obvious response would have been to apply to the courts at an early stage.

I presume the opinion of counsel has been sought in regard to the pending High Court proceedings. Who has ultimate responsibility for the situation that now presents, the operators, the EPA, the Minister or some other statutory agency? If we want to raise this issue on behalf of the people we represent, we need to know who is responsible for it.

Having regard to the submissions made by residents, multiple complaints started to be made immediately after the licence was issued in 2003. At what stage after 2003 were the first complaints received? Were complaints received from the local authority or public representatives and what action was taken in response?

Dr. Mary Kelly

With regard to the question of whether the EPA was aware this matter would arise, we were officially invited by the committee to speak about our annual report. Some days later we were informed by e-mail that the committee intended to facilitate a presentation from the Clean Air Naas group at the same meeting. In general when we have previously attended this committee, the protocol has been that we came in to present our piece and we did not necessarily sit and listen to others. We waited outside until we were called into the meeting. That is how we understood the committee arranges its business. We did not see the meeting as involving a debate and we did not receive another notification asking us to come prepared to discuss the matters arising. Clearly, we are aware the residents have been significantly impacted by what is happened at Kerdiffstown and we are prepared to discuss the issue with the committee but, as a matter of fact, we were asked to discuss something else. We have been open in terms of not putting our annual report on the record in order to facilitate the residents and the four Deputies from the area. I assure members that the EPA is as concerned about remediation of the site as the people who live near it. I accept we are not impacted by it but we have not been happy with the situation for a long time. However, we have to follow due process.

I will ask Dr. Dara Lynott to answer questions in more detail where he is able to do so. We have received a large number of complaints and have responded as best we could to all of them. Our inspectors are on that site more often than anywhere else. In regard to the High Court, we have put together a criminal file which has been sent to the Director of Public Prosecutions with a view to prosecuting the company concerned and its directors on indictment. We feel we cannot put everything into the public domain but we are being as open as we can. We have advised the committee that we secured High Court injunctions and that the site was badly run. We have been open with the residents and Dr. Lynott and other colleagues have met them.

In regard to the report that was held back, we stated during the course of last year that something would have to be done about the site. In order to start that process we contracted a consulting firm to carry out a study. We intend to use at least one part of that study in the High Court if the DPP pursues our case but that is the only part we are keeping back.

The board of the EPA has to decide whether it can sanction the agency to go into a site when we do not have the money. As the Accounting Officer for the agency, I cannot agree to X amount of euro being spent when we do not have it. The office of environmental enforcement will be presenting a number of options to the board in the very near future. I cannot tell the committee what the board will decide, but the board is extremely concerned about the state of the site and our number one priority is to get that site remediated. One can tell from what I am saying that intervention of some sort will happen and that we need to be funded for it. I am not asking for permission from the Department of the Environment, Heritage and Local Government for this. We will need to be funded to take the appropriate action. Dr. Dara Lynott may wish to add something to that.

Dr. Dara Lynott

On the issue of complaints, we knew in taking on this site to get it remediated that excavating previously deposited waste and placing it in landfill cells would be odorous. In the first two or three years half the site was excavated and a line cell was put in place, ostensibly in full compliance with what the EPA had asked it. However, we were concerned about unauthorised storage around the site and on that basis a revised licence was issued in 2006 which restricted locations where material would be stored. We were getting quasi-legal arguments at that point indicating that such material was being stored for disposal recovery, for engineering purposes and because it was a valuable product.

Within a year of that revised licence being issued, we met the National Bureau of Criminal Investigation from which we got co-operation to launch a major investigation, which culminated in November 2008 with 24 gardaí, with an equal number of EPA staff, on the site for three days collecting evidence, and also raids of three to four of the other offices of the companies to get all the data needed for a DPP file, which was ultimately submitted in November 2009. We initiated High Court action in June 2009 which was followed fairly rapidly with an interlocutory order in February 2010, a further injunction in May 2010, and, in October 2010, final clean-up orders.

The clean-up orders, by Mr. Justice Hedigan, were decisive in terms of what the companies were required to do. At that point, those companies were solvent doing business, we believe, profitably. The decision then by Neiphin Trading Limited, Dean Waste Company Limited and Jensoph Limited to go into liquidation, receivership or various such forms happened in June, two months after we had secured all of these High Court orders against them. There is an essential difficulty here where unlimited liability is being set out by limited liability companies and we are trying to disentangle the limited liabilities of companies, pull back the corporate veil and make the directors responsible for contamination on this site.

Who made the first complaints to the EPA?

Dr. Mary Kelly

I did not prepare in that much detail but we can forward that information to the committee. It is available. It all is on the public file. The complaints are on our public files at all times. I just cannot tell the committee that today.

Dr. Kelly might send a note to the committee on that and on any unanswered questions.

Dr. Mary Kelly

We can easily do that.

That would be fine. I want a written reply, if possible, to the questions I raised which have not been addressed.

The local authority imposes levies for something for which it granted planning permission. When the EPA is issuing a licence, does it impose a landfill levy? No levies have been received on this site. In other parts of Kildare, landfill levies are being paid.

Dr. Mary Kelly

We do not impose a levy. The planning permission sometimes imposes €1 per tonne or some such amount. The landfill levy is a separate issue, and that is paid.

Dr. Dara Lynott

The mechanisms for that are mechanisms between the local authority, which is responsible for it, and the Revenue. The EPA is not involved in landfill levy collection.

The EPA stated it had three successful prosecutions.

Dr. Dara Lynott

Three successful High Court actions.

Dr. Mary Kelly

These are injunctions.

The EPA did not recover anything financially.

Dr. Dara Lynott

We got orders to recover from the companies.

That is all the EPA got.

Dr. Mary Kelly

As soon as we did, they went into liquidation.

Dr. Dara Lynott

We are awaiting dates to indicate to the High Court that the companies have not completed the works, which they have not as of this date, and we are seeking orders against the directors individually.

If the Department of the Environment, Heritage and Local Government gave the EPA a sum of money to remediate this site, is it possible to recover that money from the defendants?

Dr. Dara Lynott

We are seeking legal advice on that. We must go back to the High Court to secure it because this is privately held land and also Neiphin Trading Limited is held by the liquidator. Jensoph Limited is in quasi-liquidation. We would obviously try to ensure that if there was any reason for the agency to go on this site and expend money, the taxpayer would be the first to be repaid if the owner of this site, which is still Jensoph Limited controlled by a number of directors, could not make any profit from a cleaned up site.

Whereas I understand that the EPA must follow these directors for any moneys it can get, can the EPA at the same time initiate the remediation?

Dr. Mary Kelly

We are working in parallel. I cannot say too much about it.

I appreciate that.

Dr. Mary Kelly

We want to pursue all of our legal options, both civil and legal, to give effect to the polluter pays principle. Let us put it like that.

Second, what we are doing with the report we commissioned is assessing the options for remediation. Remediation is what is needed. Remediation is what the residents want and remediation is what the EPA wants. We are on the same side.

The report we commissioned laid out a number of options. Our board will look at that and state that some of those options may not comply with European legislation, for example. We must decide as a board which ones will comply with European legislation and Irish legislation. The primary issue at which we are looking is which options will get rid of the smell in the quickest time and stop the leachate, but the smell is the worst part. Our board will look at those options. We have worked through the report. We do not want to make that report public at present because it will put information into the hands of persons, not the residents and Deputies, but those who have a different motive on this site. Let me leave it like that.

At this stage, I will bring this topic to a conclusion.

I have one final comment. I cannot understand one aspect in a situation like this where all of the public representatives have received complaints from the residents immediately adjacent in Kerdiffstown. I know of another situation-----

We are not going into a different one.

-----where the individual went to court immediately for a restraining order to prevent any further activity on the site, and it worked without difficulty within two, three or four weeks. That is my question.

Dr. Mary Kelly

We have done exactly that. We have gone to court.

That is not my question.

Dr. Mary Kelly

We have prevented activity on the site and this is what has happened.

My question was that when it became obvious that the site was not being operated under the guidelines or for the purposes for which the licence was originally granted, why did somebody not go to court immediately?

Dr. Mary Kelly

We did.

Dr. Mary Kelly

Not on the first complaint we got, that is not reasonable.

How long did it take before that happened?

Dr. Mary Kelly

I have stated that I do not have the data in front of me.

Dr. Kelly will forward it. There are one or two items on which Dr. Kelly will be able to send a written response to the committee and we will circulate the written reply when it is received. I thank the EPA for its forbearance because it was brought in on a different topic entirely. We must acknowledge that we had the earlier presentation and the nature of life is that it took over the events of the afternoon. As Chairman, I found the EPA's information helpful but I am not intimately involved. I thank the group for the information and for its willingness to be as helpful and as open as possible, despite the legal constraints.

The four Deputies from Kildare who are here today sincerely thank the EPA for giving us the information we have before us and I hope in future we will be to make contact with the group to bring this matter to a conclusion.

Dr. Mary Kelly

As soon as we can, when we have figured out the best option, we will go back to the residents and discuss that option and its facilitation. Currently, we are trying to decide the best option for the residents and for the environment.

I thank the committee for allowing those of us who are not members to intrude upon its territory.

The joint committee adjourned at 5.35 p.m. sine die.
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