May 14th, 2010
Press Statement
At a special sitting of the District Court held at Waterford on 10th May 2010, BAM Civil Limited with registered offices at Kill, Co. Kildare were prosecuted by the Southern Regional Fisheries Board following investigations into a report received concerning discoloration and turbidity which was visible in the main channel of the River Black Water over approximately 8 kilometres between Mullinavat and Kilmacow in south Kilkenny on 6th May 2009. Mr. Patrick Kilfeather Senior Fisheries Environmental Officer with the Board told Judge David Kennedy that following receipt of a complaint, he inspected the Black Water River and found that discharges of suspended solids were being made to that river from the site of the new road under construction between Waterford and Knocktopher. In reply to detailed questioning from Counsel for the Board Mr. Frank Quirke instructed by James Reilly and Son Solicitors, Mr. Kilfeather presented detailed evidence to the effect he found that pumping of silt had being ongoing from the site of roadworks in the vicinity of a new bridge at Garrandarragh, just north of Mullinavat village. As a consequence, discharges containing very high levels of suspended solids took place to a tributary of the river Black Water at Ballylusky. This tributary then conveyed solids to the main channel of the River Black Water in the townlands of Ballylusky and Ballyknockbeg. In response to questions from Counsel for the Fisheries Board, Mr. Kilfeather told the Court that the level of solids in the discharge was found on analysis to be 106,000 parts per million (ppm), whereas a typical value for a licensed discharge containing suspended solids so as to provide adequate protection for the receiving waters would be of the order of 25 ppm. He outlined in detail the effect of such silt containing discharges on the receiving fisheries environment including effect on photosynthetic activity, macro-invertebrate life and sub lethal effects on fish stocks themselves. He particularly emphasised the fact that the bed of the receiving tributary had been totally blanketed over by the discharges from the road works site. He also presented detailed mapping and photographic evidence supporting his findings.
Counsel for BAM Civil Ltd Mr. Justin McQuade instructed by Hussey Fraser Solicitors fully contested all of the evidence and proofs submitted by the Board, and cross examined Mr. Kilfeather at length. Evidence on behalf of the Board was also given by Mr. Frank Sheridan Principal Officer, Inland Fisheries Division of the Department of Communications, Energy and Natural Resources, who confirmed that the defendant company did not hold a licence under the Fisheries (Consolidation) Act, 1959 (as amended) to make such discharges, while Mr. Jim Mc. Garry of the EPA regional laboratory at Kilkenny, gave evidence of carrying out analysis on the samples for the Fisheries Board. During the course of the evidence, it emerged that Kilkenny County Council’s water abstraction from the River Black Water at Mullinavat downstream the location of the polluting discharge had to be closed down on 6th May 2009 due to the high level of suspended solids in the river water.
Following completion of the Prosecution’s case, Counsel for the defendants made a submission to the Judge reviewing the Fisheries Board’s evidence, and sought a direction based on his contention that the proofs given and the evidence tendered were insufficient such as to warrant a conviction. Judge David Kennedy refused Counsel’s request, and ruled that the Fisheries Board had proven all of the facts to the satisfaction of the Court.
Following the Judges ruling, Mr. Declan Roche Contracts Manager for the defendant company gave evidence in mitigation. Mr. Roche described BAM Civil Limited as the standard bearers in terms of construction of road projects, and he detailed the numbers of personnel employed by the company in such works. Referring to the route of the discharge referred to in the Fisheries Board’s evidence, he explained that a filtration system had been installed with the permission of a land owner adjacent to the road route, and this had been in use for a number of months prior to the incident and had reached its end of life. In particular he emphasized that in tendering in the future for contracts entailing works on major infrastructural projects, his company might be placed at a competitive disadvantage were a conviction to be recorded against them. Counsel for BAM Civil Limited in his closing submission described his clients as a proper ethical and law abiding company providing employment. He said that the company had cooperated fully with the investigations and taken remedial actions immediately.
Judge David Kennedy in summing up noted that this was the second occasion for a problem to have arisen from this particular road project, and said that the legislation was there for a purpose. He congratulated the Southern Regional Fisheries Boards witness Mr. Patrick Kilfeather on the effort put in to the preparation, compilation and presentation of evidence, but said in the circumstances having regard to the submission made on behalf of the defendant company, he was reluctant to place them at a disadvantage in relation to the future. Judge Kennedy then ruled that on the understanding the costs and expenses incurred by the Fisheries Board which totalled €21,265.16 would be paid within 14 days by BAM Civil Ltd, and subject to the defendant company making a donation of €3,000 to the Court Charity, he found the facts proven and dismissed the Summons pursuant to Section 1.1 of the Probation of Offenders Act, 1907.
Commenting on the circumstances of the prosecution, Mr. Patrick Kilfeather on the behalf of the Fisheries Board said that this was one of the worst incidents of water pollution ever encountered from road construction works. He added, that whilst the Board had attempted always to work in a helpful and cooperative manner with BAM Civil Limited, regrettably there were occasions when the level of management and regulation of discharges from the road construction project between Waterford and Knocktopher was highly unsatisfactory from a fisheries perspective. He said that it was particularly satisfying for the Board, that despite the vigorous defence mounted by the defendant company where each and every element of the Board’s evidence was challenged, that the Court had found in favour of the Board, and ruled the case had been proven to its satisfaction. Additionally he commented, notwithstanding the fact that BAM Civil Limited now have been twice before the Courts in respect of problems arising from the construction of the road project between Waterford and Knocktopher in the Southern Fisheries Region, the Board will in the National interest continue to work in a cooperative fashion with BAM Civil Ltd. and indeed with all contractors engaged in the carrying out of what are essential works in the provision of infrastructure in terms of our new road networks. Mr. Kilfeather also placed on record the Boards appreciation for the high level of cooperation received from the Department of Communications Energy and Natural Resources, Kilkenny County Council and the EPA’s Kilkenny Regional Water Laboratory in respect of the provision of assistance and witnesses in the preparation and successful conclusion of the prosecution. He also he thanked the Board’s legal team.
Speaking after the conclusion of the prosecution, Mr. Brian Sheerin CEO of the Board (and Director Designate of the shortly to be constituted new inland fisheries agency - Inland Fisheries Ireland) said it was particularly disappointing that for a second occasion, the discharges being made from the Waterford to Knocktopher road project which was been undertaken by BAM Civil Ltd were of such seriousness as to warrant the Board’s taking a second prosecution against the company. He said that the Board will continue to strictly monitor and control all operations at road construction sites in the region where the potential for discharges impacting on the fisheries resource exist. Mr. Sheerin said it was particularly gratifying to note the comments made by the Judge insofar as to how the investigation had been undertaken by the Board, and the evidence presented and said that his environmental management team had once again been shown to be meticulous in terms of attention to detail and fairness as regards collection and presentation of what was highly complex technical evidence.