Waste management company owner jailed over landfill breeches

By Declan Brennan and Eimear Dodd

A former waste company owner has been handed a prison sentence over waste management breaches at a landfill site in Co. Kildare.

Tony Dean (70) of Woodhaven, Milltown, Dublin, was found guilty last November 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 acres site at Kerdiffstown, Naas, Co Kildare between October 2003 and November 2008.

Dean, who owned Dean Waste Management Ltd., pleaded not guilty to the three charges.

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.

Imposing sentence today, Judge Melanie Greally said the breaches had had a “significant environmental impact” and an effect on activities and residents of adjacent properties.

While acknowledging the “absence of actual harm to human or animal health”, the judge said the landfill was accepting more waste than it could manage at that time, and the motivation was financial.

She noted there was evidence that large profits were generated and appeared to have been prioritised over compliance.

She noted the “persistent nature” of the non-compliance over the five-year period and that Dean neglected to take steps to comply with the relevant legislation and avoid environmental pollution.

Judge Greally handed Dean a three-year sentence, with the final 12 months suspended on condition that he keep the peace and be of good behaviour.

Judge Greally acknowledged that Dean entrusted a manager with the day-to-day running of the site, and they were “not ultimately made accountable for failings in management”.

But she said the court also had to consider the principles of general deterrence and punishment.

At a previous hearing, the court heard a licence was issued to Dean Waste in 2003 for the storage of waste in lined landfill cells in former sand and gravel pits a few kilometres outside of Naas.

The licensed area was about 30 hectares at its height, but the area subject to the offending was a 35-acre section in the northwest part of the site.

The court heard that the only provision for disposal of the waste was in lined landfill cells constructed in 2005; however, waste was not ultimately disposed of in these cells until 2008.

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.

Nephin Trading Ltd., (NTL), a wholly owned subsidiary of Dean Waste Ltd., operated the licence and failed to address this non-compliance despite repeated warnings from the EPA. The facility ceased trading in 2010.

A liquidator was appointed to NTL, and Dean Waste went into receivership.

In January 2011, a major fire broke out at the site.

The court heard that the quantity of the waste was unhelpful in terms of the fire, but the cause could not be laid at the door of NTL or the defendant as the site was no longer in their control at this time.

Barry White SC, defending, said his client had hired Dr Ted Nealon, a former employee of the EPA, to advise him.

The court heard Mr Nealon was prosecuted in relation to the Kerdiffstown site in 2015 but acquitted at the direction of the trial judge.

The Supreme Court later ruled that the direction to acquit Mr Nealon was wrong but ordered no retrial due to the passage of time.

Mr White said his client had entrusted day-to-day operations with the EPA to Dr 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 court heard that in 2009 Dean pleaded guilty to a charge of the recovery of waste without a licence relating to a site at Whitestown Quarry, near Baltinglass, between January 1st and May 1st in 1998.

He also has a conviction for offences of assault causing harm, threatening and abusive behaviour and intoxication in a public place, all occurring on September 29, 2006.

Passing sentence today, Judge Greally noted that €61.5 million of public money was spent to remediate the site, and although no sum could be attributed specifically to NTL, a portion of the work was “necessary as a direct consequence” of NTL’s activities in general.

She set a headline sentence of four years on each of the charges, which she reduced to three years with the final 12 months suspended.

All sentences are to run concurrently.

Judge Greally said she took into account the mitigating factors, including Dean’s poor health, low risk of re-offending and the added difficulties of prison for someone of his age and background.

Other mitigation included Dean’s hardworking and entrepreneurial qualities and the economic benefits and job creation associated with his waste management operation.

At an earlier hearing Dean Kelly SC, prosecuting, said that 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 of Naas.

He said the licensed area was about 30 hectares at it’s 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 land fill gas and no liner to control where the gas went.

He said such gases had 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 €9.9m to the EPA to fund its response to the fire and proper waste management of the site.

Kildare council received €1.46m in 2011 to fund its immediate response to the fire.

The country council later received another €34m for capital costs for general remediation of the site and another €16m in 2022 to finish the remediation project.

Mr Kelly told the court that in total €61.5m was paid to recover the site but that around €11.5m of that was a direct response to the 2011 fire.

He said that while the quantity of the waste was unhelpful in terms of the fire the cause of the fire could not be laid at the door of NTL or the defendant as the site was no longer in their control when it broke out.

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 Dr Nealon, who he said is entitled to the presumption of evidence.

He said 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 ten years or a fine of €15m.

Mr White said that his client’s company provided substantial employment and he has contributed to society. He said there is no “pile of money” and his client is not in a position to meet a substantial fine.

He said that when his client’s company went into receivership “everything was lost”, including a house in Spain. He said his client is not in good health and needs to undergo imminent heart surgery.

The court heard that in 2009 Dean pleaded guilty to a charge of recovery of waste without a licence relating to a site at Whitestown Quarry, near Baltinglass, between January 1st and May 1st in 1998.

He also has a convictions for offences of assault causing harm, threatening and abusive behaviour and intoxication in a public place, all occurring on September 29, 2006.

Dean had pleaded not guilty to two charges that he, as then director of Nephin Trading Ltd, disposed of or undertook the recovery of waste at a facility in Kerdiffstown, Naas, Co Kildare otherwise than in accordance with the waste licence then in force, between October 2003 to September 2006 and, separately, between September 2006 and November 2008.

He had also denied a third charge that he held or recovered waste in a manner likely to cause environmental pollution at the Kerdiffistown site between October 2003 and November 2008. He was convicted on all three charges by unanimous verdicts.