Co Donegal waste operator Jim Ferry has been told by a High Court judge that he will be sent to jail if he does not clean up his illegal waste facility at Rossbracken, Letterkenny.
Ferry was "a disgrace to the people of Donegal", Mr Justice Max Barrett told him during a hitherto unreported sitting of the court on July 28th. The hearing was sparked by a Donegal County Council application for an order of attachment and committal against Ferry.
In plain English, the council wanted him imprisoned for contempt, because of his failure to adhere to a High Court order granted last April.
The day after being told he would be jailed, a fire broke out inside a shed at the illegal facility. It was the latest in the chain of extraordinary events attending the latter-day life and times of Ferry's Donegal waste enterprises.
Since April, efforts to get Ferry to obey the law and cease his polluting activities have been proceeding by stealth, at the behest of Donegal County Council. In this, the council is being encouraged by the Waste Enforcement Regional Lead Authority (Werla). Werla is a little known European Union-inspired tier between the Department of the Environment and local authorities whose function is to ensure environmental legislation is complied with and enforced uniformly across the State.
Ferry controls an 11-acre site at Rossbracken which is a special area of conservation near the Letterkenny to Buncrana road, a stretch of the Wild Atlantic Way. From there he has run a waste collection business through two companies: Ferry's Refuse Collection Limited, which he owns; and Ferrys Refuse Recycling Limited, which is owned by his daughter but which Ferry effectively controls.
Ferry has used the Rossbracken site to separate and bale waste, some of it for onward removal and legal disposal and for which he has a permit. But much of the waste has been stored illegally on the site, in sheds and on open ground.
Furthermore, between 28,000 and 36,000 tonness of waste have been buried there (also illegally) in several locations, the largest of which is hidden behind a specially built retaining wall and concealed beneath a layer of soil.
This dump is bleeding pollutants into a stream that flows into Lough Swilly.
By collecting waste from households and other customers, not bringing it to licensed disposal sites, and paying the fees such sites charge, Ferry has been able to inflate his profits while simultaneously undercutting other waste collectors in Donegal.
It was largely at the insistence of aggrieved competitors that Donegal County Council, working with Werla, initiated the crackdown on Ferry in November 2016, that led to the High Court order of April.
Fines
Prior to this, Ferry had notched up a litany of District Court convictions for illegal activity. While these led to fines, there were no other consequences and Ferry simply carried on breaking the law.
The April High Court order directed Ferry not to bring any more waste to the Rossbracken site and not have his green and yellow waste collection vehicles use it either.
The order also directed him to remove all surface waste from the site, that is waste that was not buried, within three weeks.
Strewn
This was waste strewn about the site, some of it baled and stacked on a hard stand, much of it stored inside a large green shed.
In January 2017, the council estimated that about 600 bales of waste were stored in the yard, along with some 2,000 cubic metres of loose waste (that is, municipal or black bin waste) inside the shed awaiting compressing into bales, a quantity estimated to be equivalent to 400- 800 bales.
The High Court also directed Ferry to comply with the council within two months over a more serious problem: the 28,000-36,000 tonnes of buried waste. Simply put, all of the waste needs to be dug up, removed from the site and disposed of legally.
In the council’s view, Ferry failed to comply with the High Court order and on July 20th, the local authority returned to the High Court to seek an order for his imprisonment.
The council estimates that it will cost €400,000 to remove waste from the site and €4.5 million to remediate the site fully.
Mr Justice Barrett asked Ferry, who was representing himself, what he had to say and warned him to expect a ruling against him. He recommended he get legal advice and gave him until July 27th to submit an affidavit in reply to the council’s application for his jailing.
The next day Ferry applied for legal aid, telling the law centre in Letterkenny that his assets were outweighed by his liabilities. A statement of means, drawn up by him, claims assets to the value of €701,000. Some €650,00 of that being his own valuation of the house and 11 acre site at Rossbracken.
Ferry says he owes the Bank of Scotland €1,716,263 and Danske Bank €533,299, thereby computing total debts of €1,548,337.
Ferry claims to have a surplus on weekly earnings and outgoings of a mere €8. He says he pays himself €360 from his waste business and also earns €10 a week from farming.
Ferry’s affidavit, which he appears to have written himself says: “I am not refusing to comply with the Order. I cannot comply with the Order because I cannot locate a third party to accept the waste and even if I could, I cannot afford to transfer and pay for the disposal of the waste.”
Lawyers for the council told Mr Justice Barrett that no evidence had been provided by him to support his assertions. They argued that even if they accepted his claim that he could not pay to comply with the order, that in itself, was an admission of non-compliance.
Back in court on July 28th, Mr Justice Barrett made clear his patience was running thin. The judge seemed appalled that illegally dumped waste had not been removed from the site.
The case was “the most revolting to come before me on the bench to date” he told Ferry, whose attitude towards the court the judge characterised as “absolutely disgraceful”.
But he gave him one final chance. He gave him until August 22nd to comply with the order. He told him to start the process of removing the waste from Rossbracken, well before the 22nd and that if he did not he would be facing a “lengthy jail sentence” upon his return to the court.On the day after the judge issued this ultimatum, on Saturday July 29th, someone contacted Donegal County Council. There was a burst pipe, water was escaping, the council was told. Water supply In response, the council turned off the water supply to Rossbracken so as to limit the loss of water via the alleged leak. While residents in the locality would have to make do for with whatever was in their water tanks, there would be no water available from hydrants.
At 1.34pm, Letterkenny Fire Brigade took a call: there was smoke pouring from a shed on Ferry's site at Rossbracken.
Tenders were dispatched and got there within minutes. But the main entrance to the site was blocked. Bales of concrete blocks had been stacked across the entrance. There was no construction taking place and while an individual could walk between the stacks of blocks, a fire tender could not access the site. However, firefighters found another way on to the site by a less used and more obscure route.
Before the firefighters got to work, they were alerted by the council about recent court proceedings, the problem with the site and the fraught relations between the local authority and Ferry.
“When they set about their task,” said a source, “the fire hydrants were turned off”.
However, by now suspecting there was, in truth, no issue with the water system, the council turned supply back on. It was unnecessary in any event as the amount of water carried by the fire brigade vehicles was sufficient for the task.
At the shed from where smoke was billowing, firefighters navigated past obstacles, including vehicles.
At a door into the large shed, the firefighters were able to shoot water to the inside. They also built a small dam to keep the water inside the building, helping to stop the fire spreading. Other people, not council officials and gardaí who arrived quickly on the scene, were present on the site but did not interfere with the work of the firefighters, even if the movement of machinery did not serve to make their task easier.
Once the fire in the shed was dampened down, firefighters got a digger inside and began breaking into the mound of some 2,000 cubic metres of MMW – mixed municipal waste – enabling them to get to the seat of the fire and put it out.
But crucially, the firefighters were very careful not to take outside the shed any of the waste that was inside. “Had they done that,” explained a source, “[the waste] would become the responsibility of the fire brigade and the council. Technically, they didn’t take anything out of the shed, so it’s still [Ferry’s] problem.”
The fire was brought under control before long and gardaí, treating the shed and immediate surround as a crime scene, taped it off and examined it accordingly.
The Irish Times submitted a number of questions to Ferry via email to his company and text message to his mobile phone on Wednesday. He responded last night but answers are awaited.
Meanwhile callers to the company hear this recorded answer. “You have reached Ferry’s Recycling,” it says. “Please note, as of August 1st, we will be trading as Wers Waste.”