December 19, 2022
Tony Dean (70) of Woodhaven, Milltown, Dublin was found guilty last month by a jury at Dublin Circuit Criminal Court of two breaches of a waste management licence and of holding or recovering waste in a manner likely to cause environmental pollution at a 25-acre site at Kerdiffstown, Naas, Co Kildare between October 2003 and November 2008.
Dean, who owned Dean Waste Management Ltd., had pleaded not guilty to the three charges and the prosecution case was that he was negligent rather than that he had connived or consented to commit the offences, which are contrary to the Waste Management Act, 1996.
The defendant, who is remanded on bail, appeared before Judge Melanie Greally, for a sentence hearing.
Dean Kelly SC, prosecuting, said in 2003, a licence was issued to Dean Waste for the storage of waste in lined land fill cells in former sand and gravel pits a few kilometres outside Naas.
He said the licensed area was about 30 hectares at its height, but that the area subject to the offending was a 35-acre section in the north west part of the site. He said the only provision for disposal of the waste was in lined land fill cells constructed in 2005.
He said the waste was not ultimately disposed of in these cells until 2008. He said that between 2003 and 2008 a series of audits and inspections by Environmental Protection Agency (EPA) officials identified a growing mound of waste which contravened the terms of the licence.
Mr. Kelly said that Nephin Trading Ltd., (NTL), a wholly owned subsidiary of Dean Waste Ltd., operated the licence and that they failed to address the non-compliance issues despite repeated warnings from the EPA.
The court heard that the waste material which built up was assessed by experts as unfit for recovery and there was no evidence anyway of any attempts to recover it.
Mr. Kelly said there was no management of landfill gas and no liner to control where the gas went. He said such gases have a substantial odour, present a risk of flammability and of explosion, and can cause vegetation dieback. Landfill leachate, which results from rain water percolating through the exposed waste, can also enter the water table, the court heard.
He said that when the company applied for a second licence in 2006, there were 188 complaints registered from local residents as well as local golfers and the operators of a local St Vincent DePaul facility. The second licence was issued by the EPA in September 2006 and the second charge of breaching a licence relates to this licence.
Mr. Kelly said that the jury trial heard evidence of substantial profits made by Dean Waste from 2003 to 2007. In 2008, the EPA took the view that it needed to pursue a prosecution.
The facility continued to trade until June 2010 when it ceased trading. A liquidator was appointed to NTL and Dean Waste went into receivership.
In January 2011 a major fire broke out at the site, which was under the control of the EPA, the court heard. Control of the site passed to Kildare County Council in 2015.
From 2011 to 2014, the Department of the Environment paid €9.9 million to the EPA to fund its response to the fire and proper waste management of the site. Kildare council received €1.46 million in 2011 to fund its immediate response to the fire.
The country council later received another €34 million for capital costs for general remediation of the site and another €16 million in 2022 to finish the remediation project.
Mr. Kelly told the court that in total €61.5 million was paid to recover the site, but that around €11.5 million of that was a direct response to the 2011 fire.
Barry White SC, defending, said the site had been targeted by vandals in the run up to the fire taking place. He said his client had invested the profits he made from Dean Waste back into the site and that he lost everything in 2010 when he lost the site and the company. He said that his client had hired Dr. Ted Nealon, a former employee of the EPA, to advise him.
Mr. Kelly told the court that, in 2015, Mr. Nealon was prosecuted in relation to the Kerdiffstown site. At his trial before Dublin Circuit Criminal Court, a judge directed a verdict of not guilty after a ruling on the statutory interpretation of what a manager or officer in a company is.
Mr. Nealon’s defence was that he was a consultant to the relevant company. The case went to the Court of Appeal and then the Supreme Court which ruled in 2010 that the direction to acquit Mr. Nealon was wrong, but that with the passing of time it would be unfair to resume the prosecution.
Mr. White said his client had entrusted day-to-day operations with the EPA to Mr. Nealon, who he said is entitled to the presumption of innocence. He said that, in these circumstances, it would be grossly unfair to impose a custodial sentence on his client.
The maximum penalties available to the court are a prison term of 10 years or a fine of €15 million.
Judge Greally adjourned the case to 30 January 2023.
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