Environmental Protection Agency In Court Against Landfill Companies, Their Lender Bank And Receiver Seeking Payment Of Landfill Closure And Restoration Costs

Author:Ms Nicola Dunleavy, Patrick Sweetman and Michael O'Connor
Profession:Matheson
 
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Closure, Restoration, Remediation and Aftercare Costs - the law Operators of landfill sites are obliged to charge fees for disposal of waste ("gate fees") which must be sufficient to cover:

The total costs of running the landfill; and The estimated costs for the clean-up, restoration, remediation and aftercare of the landfill, (the "closure and restoration costs"), after the landfill has closed. The EPA may refuse to grant a landfill licence if the landfill operator does not provide for the collection of sufficient fees to cover these costs. The landfill licensee must report annually to the EPA on its fees to demonstrate that the fees are sufficient for this purpose.

Separately, the EPA also has the power (or possibly the obligation) to require financial security to be put in place by the licensee, as a condition of the grant of the landfill licence, for the estimated closure and restoration costs.

The facts of this case The Greenstar group companies, Greenstar Holdings and KTK Landfill Ltd, were the relevant landfill licence holders. Greenstar Holdings' annual accounts for 2011 made provision of €27 million for those costs but the gate fees collected for the landfills were never in fact transferred to Greenstar Holdings. The funds were retained in the bank account of the landfill operator (another group company) and were used for the benefit of the group.

The Greenstar group companies triggered events of default in their loans. The lender banks ultimately demanded repayment of the entire sum due of over €82 million. Following the appointment of a receiver in 2013 over some of the group assets (though not over the landfills themselves, or associated property, rights and activities), Bank of Ireland transferred funds of €12 million from the accounts of the landfill group to pay off part of the debts owing to the syndicate of lender banks.

The landfill operator, licence holder and gate fees collector were three separate entities within the group structure. For the purposes of its decision on the preliminary issue, the Court ignored the different functions and roles and treated the question as if the roles were all fulfilled by one company ("Greenstar").

The EPA argued that Greenstar was not entitled to do what it wished with the portion of the gate fees that was required to cover the estimated closure and restoration costs. Although this restriction of the use of those...

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