The Australian Steel Company and Minister for the Environment
[2022] AATA 2756
•31 March 2022
The Australian Steel Company and Minister for the Environment [2022] AATA 2756 (31 March 2022)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) ) No: 2021/0619 GENERAL DIVISION ) Re: The Australian Steel Company (Operations) Pty Ltd
Applicant
And: Minister for the Environment and Water
RespondentAnd: Nyrstar Port Pirie Pty Ltd
Other PartyDIRECTION
TRIBUNAL: Dr. Damien Cremean, Senior Member
DATE OF CORRIGENDUM: 19 August 2022
PLACE: Melbourne
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
- The words “Minister for Infrastructure and Regional Development” are to be replaced with the words “Minister for the Environment.”
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Dr. Damien Cremean, Senior Member
Division: GENERAL DIVISION
File Number(s): 2021/0619
Re:The Australian Steel Company
APPLICANT
AndMinister for Infrastructure and Regional Development
RESPONDENT
AndNyrstar Port Pirie Pty Ltd
OTHER PARTY
DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:31 March 2022
Place:Melbourne
1.The Other Party must produce copies of the information listed in Schedule 1 to the Applicant’s Proposed Draft Directions to the Applicant, within 28 days, as follows—information in items:
(i)1(a); 1(b); 1(c); and
(ii)2(a); 2(b); 2(c)(i); 2(c)(ii) (as it relates to annual reporting only); and
(iii)3(b)(i);
(iv)4(a); and
(v)7(b).
2.The Applicant must lodge with the Tribunal and serve upon the Respondent and the Other Party a brief document clarifying the extent or scope (in the ways mentioned in the Reasons) of the information listed in such Schedule within 14 days as follows—information in items:
(i)3(a)(i); 3(a)(ii); 3(b)(ii); 3(c)(i); and
(ii)4(b)(i); 4(b)(ii); 4(b)(iii); 4(c)(i); 4(c)(ii); and
(iii)5(a)(i); 5(a)(ii); 5(b); 5(c);
(iv)6(a); 6(b); and
(v)7(a).
3.The Other Party may lodge with the Tribunal and serve on the Applicant and the Respondent brief submissions (not cross-referencing, or incorporating by reference, other documentation) directly responding to any of the items referred to in the Applicant’s document referred to in (2) above, within 14 days of being served with such document.
4.Thereafter, the Tribunal will give consideration to making further directions with respect to the items mentioned in (2) above; and may make directions accordingly, without further hearing from the Applicant or the Other Party.
5.The Other Party must lodge with the Tribunal and serve upon the Applicant and the Respondent a brief document clarifying whether confidential information is claimed (and stating the basis for each such claim) in any of the following items listed in such Schedule within 14 days as follows—information in items:
(i)3(a)(i); 3(a)(ii);
(ii)4(b)(i); 4(b)(ii); 4(b)(iii);
(iii)5(a)(i); 5(a)(ii); 5(b);
(iv)6(a); 6(b); and
(v)7(a).
6.The Applicant may lodge with the Tribunal and serve on the Respondent and the Other Party brief submissions (not cross-referencing, or incorporating by reference, other documentation) directly responding to any of the items referred to in the Other Party’s document referred to in (5) above, within 14 days of being served with such document.
7.Thereafter, the Tribunal will give consideration to making further directions with respect to the items mentioned in (5) above; and may make directions accordingly without further hearing from either the Applicant or the Other Party.
8.Except as set out above, the application of the Applicant for further information listed in such Schedule is dismissed.
9.A decision on the question of a view or audio/video presentation of the site is reserved;
10.Liberty to apply is reserved;
11.The matter is to be listed for further directions in May 2022.
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Dr Damien Cremean, Senior Member
CATCHWORDS
PRACTICE and PROCEDURE—Information sought by applicant—objection of other party —relevant principles—approach of Tribunal—information allowed—information sought but not allowed—directions to be made—directions accordingly
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions (Judicial Review)Act 1977 (Cth)
Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth)Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996 (Cth)
CASES
Associated Dominions Assurance Society Pty Ltd v John Fairfax & sons Pty Ltd (1955) 72 WN (NSW) 250
Fard v Secretary ,Department of Immigration and Border Protection [2016] FCA 417
LPSP v Minister for Immigration, Citizenship,Migrant Services and Multicultural Affairs [2021] FCA 1563
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21
Rayson and Repatriation Commission (2009) 49 AAR 254
Shord v Commissioner of Taxation [2017] FCAFC 167Trade Practices Commission v Arnotts Ltd (No2) (1989) 88 ALR 306
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
31 March 2022
A directions hearing was held in this matter on 21 December 2021.
The matter is one arising out of a decision of a delegate of the Respondent to refuse to grant a special export permit under reg 16 the Hazardous Waste (Regulation of Exports andImports) (OECD Decision) Regulations 1996 (Cth) made under the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) (“1989 Act”).
In saying so, I am aware the Applicant (“TASCO”) argues, and the Respondent and the Other Party (“NYRSTAR”) argue to the contrary, that provisions in reg 16 are not validly authorised by that 1989 Act. Authorities establish that argument is not a concern on merits review in the Administrative Appeals Tribunal.
Fundamentally, if that is TASCO’s argument, I think the case is one that should have been brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) because the Tribunal is unable to determine questions of invalidity of that nature
An application by TASCO to refer this matter to the Federal Court, however, was refused by me on an earlier occasion because authorities indicated that before a matter can be referred there must be findings made on the facts or an agreed set of facts, and neither was the case here.
The purpose of the directions hearing was to determine whether specified and listed information should be provided by NYRSTAR to TASCO.
This follows TASCO having sought this information informally from NYRSTAR.
TASCO’s application was opposed by NYRSTAR but the Respondent, by Mr K Eskerie, Counsel for the Minister, adopted a position of strict neutrality. I express some curiosity about that since it is the Minister’s decision which is under review.
The peculiarity in this proceeding is that normally an applicant is expected to have all the information at its disposal so as to say why some reviewable decision is not the correct or preferable one.
Normally also, a party who or which cannot specify a reasonably arguable case as to why the reviewable decision is not the correct or preferable one, risks a response that it has brought a proceeding which is an abuse of process or is one which has no reasonable prospect of success under s 42B of the Administrative Appeals Tribunal Act1975 (Cth) (“AAT Act”).
I have considered that course in this case but have decided in light of materials to treat TASCO’s application as one worthy of determination. Amongst other provisions, I have regard in that connection to s 39(1) of the AAT Act.
I have also had regard to s 2A of the AAT Act, particularly in its reference to “just” amongst the objectives. If justice in the case for TASCO cannot be arrived at—in terms of what is the correct or preferable decision—except by access to materials in the possession or control of NYRSTAR, which is refusing such access, then I consider that s 2A and s 39(1) of the AAT Act gain even greater prominence.
That, I must add, is not to indicate that I have formed any view(s) about what the correct or preferable decision is overall, or finally in the matter.
I cannot agree with some who say that s 2A is merely aspirational—particularly when compliance with its provisions is also made an obligation of parties by the Act: See
s 33(1AB) of the AAT Act.
An example of that is to be found in obiter in Fard v Secretary, Department of Immigrationand Border Protection [2016] FCA 417 at [80] per Griffiths J. But in that case His Honour quoted Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 at [108], who was speaking of s 420 of the Migration Act 1958 (Cth); and s 33(1AB) of the AAT Act was not in force then and only came into operation a short time before the decision in Fard’s case .
Perhaps s 33(1AB) was not drawn to the attention of Griffiths J in Fard’s case. I am unable to see how, in light of s 33(1AB), the provision in s 2A of the AAT Act does not create substantive rights. But if I am wrong in this, I rely upon the powers otherwise in s 33 itself and also upon s 39(1).
I consider therefore it would be unjust not to allow TASCO’s application to be heard and determined because, to decline to do so, could mean depriving TASCO of the opportunity to bring a case which in justice ought to be able to be brought. This would not be supported by s 39(1) of the AAT Act.
As things stand, TASCO argues that it cannot properly advance its case beyond the present stage without being possessed of the information sought.
Only time will tell, after a full hearing on the merits, whether that was correctly asserted, and whether any information I direct TASCO to be provided with, was in fact needed after all.
To an extent therefore, the Tribunal is travelling blind: if I disallow TASCO’s application entirely (as NYRSTAR wants me to do) I could work a serious injustice, but if I allow it in its entirety (as TASCO wants me to do) I could work a serious injustice in the other direction, and oblige NYRSTAR to provide information it should not be obliged to provide.
In any event, even acceding to TASCO’s application in all or a number of respects, it would still be open to NYRSTAR, I would think, to bring an application under s 42B of the AAT Act. There is no time limit specified by s 42B and indeed it uses the words—“at any stage of the proceeding”.
NYRSTAR, I should note, opposes the application on various grounds set out in affidavit material and documentation including submissions
The question whether a view should take place I have expressly not decided, and I will have more to say about that on another occasion. But I think a view could be desirable—without having heard all the arguments. It could be a question though of the form a view should take. The Tribunal’s powers to determine its own procedures under s 33 of the Act do not exclude the possibility of an expert being appointed (at joint cost to the parties) to provide audio /video evidence.
I should point out, I do not regard s 33(2A) of the AAT Act as exhausting the powers otherwise contained in s 33 itself.
Information sought
The information sought is itemised in a Schedule to proposed draft directions submitted by TASCO:
1.PROCESS DOCUMENTS
(a)a description of the Port Pirie slag fumer, including its process capacity, and pollution control equipment, (including a process flow diagram for the slag fumer);
(b)a copy of a current site plan/s of the Port Pirie facility, including one that shows the locations of stockpiled EAF dust and stockpiled spent slag;
(c)a Process Document setting out how Nyrstar processes the EAF Dust sent to it from the Applicant at its Port Pirie facility, which describes each step that occurs from when the EAF Dust first arrives at Port Pirie until the end of the slag fuming process;
(d)a statement from Nyrstar verifying that the Process Document accurately reflects how EAF Dust is, in fact, processed at Port Pirie.
2.EPA REPORTING
(a)any documents provided to the South Australian Environment Protection Authority (EPA SA) since 1 August 2018 in relation to any material non-compliance with Nyrstar's EPA Licence (or other relevant laws and regulations) caused, or contributed to, by EAF dust and/or stockpiling of spent slag;
(b)a copy of the Pollution Control Incident Register and records of inspections that were most recently provided to the EPA by Nyrstar;
(c)a copy of:
(i)the Dust Management Plan required by licence condition U-1189 of EPA Licence 775;
(ii)quarterly and annual reporting in relation to compliance with the Dust Management plan since 1 August 2018.
3.FUGITIVE DUST EMISSIONS
(a)any current operating procedure, policy or process document which includes:
(i)standard operating procedures for unloading and handling of EAF dust;
(ii)fugitive dust management plans and controls in relation to the unloading and storage of EAF dust;
(b)any documents that contain fugitive dust monitoring data and/or incident reporting since 1 August 2018 arising from:
(i)unloading of EAF dust; and/or
(ii)stockpiles of EAF dust;
(c)any studies or reports carried out for the purpose of measuring, analysing or collating data with respect to emissions to air from:
(i)the feeding of EAF dust into the slag fumer; and/or
(ii)the operation of the slag fumer while processing EAF dust as part of its feed material; and/or
(iii)the feeding of EAF dust into the TSL furnace; and/or
(iv)the operation of the TSL furnace when processing feed containing EAF Dust.
4.STOCKPILE MANAGEMENT
(a)photographs of stockpiled EAF dust at Port Pirie in the manner it is currently stockpiled;
(b)any current procedure, policy or process document which includes standard operating procedures for storing EAF dust, including:
(i)locations of stockpiles of EAF dust;
(ii)size of stockpiles of EAF dust;
(iii)how EAF dust stockpiles are stored; and
(iv)volume of available storage areas;
(c)a copy of any documents currently in force containing:
(i)stormwater management plans in relation to run-off from stockpiles of EAF dust or spent slag;
(ii)monitoring of contaminants from run-off from stockpiles of EAF dust or spent slag.
5.VOLUMES OF PROCESSING
(a)any documents showing stockpile volumes at the Port Pirie facility since 1 August 2018 of:
(i)EAF dust; and
(ii)spent slag;
(b)any documents showing the volumes of EAF dust that have been processed at the Port Pirie facility since 1 August 2018; and
(c)data reports in relation to the number and duration of unplanned shutdowns of the blast furnace and top submerged lancing furnace since 1 August 2018.
6.WASTEWATER MANAGEMENT
(a)a copy of any policies, procedures, process diagrams or manuals currently in force which set out the process of washing EAF dust prior to processing in the slag fumer, including how any wastewater stream is subsequently managed;
(b)any documents containing records in relation to the monitoring of the wastewater stream generated by washing EAF dust since 1 August 2018.
7.BY-PRODUCTS
(a)a copy of any process diagram or manual (including Landfill Environment Management Plan) currently in force showing how the waste by-products from the processing of EAF dust in the slag fumer are managed, processed, transferred and/or disposed of;
(b)the development approval from the Port Pirie Regional Council referred to in the Other Party’s Statement of Facts, Issues and Contentions of 19 November 2021 at [26].
Procedural powers of Tribunal
Before proceeding to my analysis, I intend to say something about the powers of the Tribunal as I see them under the AAT Act.
I have already mentioned s 2A of the AAT Act, which in full reads:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision‑making of the Tribunal.
The Tribunal’s powers relating to procedure are set out in s 33(1) of the AAT Act:
(1) In a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
In a directions hearing, the Tribunal may make the types of directions set out in s 33(2A) of the AAT Act:
(2A) Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:
(a) require any person who is a party to the proceeding to provide further information in relation to the proceeding; or
(b) require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or
(c) require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing; or
(d) limit the number of witnesses who may be called to give evidence (either generally or on a specified matter); or
(e) require witnesses to give evidence at the same time; or
(f) limit the time for giving evidence or making oral submissions; or
(g) limit the length of written submissions.
Provisions in the AAT Act amongst the above I wish to emphasise include: all the provisions in s 2A read with s 33(1AB); s 33(1)(c); s 33 (2A)(a).
There is no express provision relating to discovery in the AAT Act, but I consider discovery is within the reach of s 33(1), and the provision of “specific information” is clearly contemplated by s 33(2A)(a).
I should also wish to mention in passing that the Tribunal is plainly not a court of law and was never intended to function as one. Positions which might be taken—out of advantage being taken of the rules of evidence—are out of place in the Tribunal where, in general, proceedings are not adversarial: See Shord v Commissioner of Taxation [2017] FCAFC 167 at [181] per Logan J.
Take this very case. At an earlier Directions Hearing I directed the parties to formulate a Joint Statement indicating matters of agreement or disagreement in relation to this (the “Information”) application. It got nowhere. NYRSTAR objected to the application “in its entirety” with grounds being given. But that is not a position which is helpful to the Tribunal; and in my view is one which derogates from s 33(1AB) of the AAT Act.
That approach may work in civil litigation in the courts which must follow the rules of evidence productive of strict proofs but even in the courts there are some relaxations in this regard. I refer to the Farewell Address of the Hon. Justice McKerracher, delivered on
5 December 2021, in which his Honour reflected on the work of the Registrars of the Federal Court. He said they “strive to calmly find common ground and resolve that which is not”. He added—“In doing so, the process exemplifies the need for tolerance and restraint rather than grandstanding and showboating”.
Those remarks are of particular relevance to the Tribunal, where its processes place so much emphasis in s 2A of the AAT Act on informality, fairness and economy. There is a marked reluctance to see the Tribunal “playing the role of a court engaged in an adversarial process”: Rayson and Repatriation Commission (2009) 49 AAR 254 at 284 per Forgie DP.
By s 33(1AB) of the AAT Act, as I have noted, practitioners and others are also obliged to have due regard to these matters.
It turns out—as will be seen—that this was not an occasion for NYRSTAR (which voluntarily agreed to be joined) to deny the application of TASCO “in its entirety” on any ground. I merely repeat my reference to s 33(1AB) of the AAT Act.
There was in my view room for compromise, as will be apparent.
A further point I would make—and it was raised by TASCO’s Counsel in opening—is that the Tribunal plainly does have a review function under the AAT Act.
A position adopted by a party should not lead to subversion or contraction of that function.
Parliament intended that function to be exercised to review decisions from time to time as set out in its laws; and it must have been its intention that its exercise should be unimpeded except as provided.
Accordingly, the Tribunal in my view should be careful to ensure it is best placed to exercise that function and not only half exercise it—due allowances being made.
Directing a party to provide information may be the only way that the Tribunal ensures it is best placed to be able to exercise that function.
Moreover, I consider this also is something which is well within the purview of s 39(1) of the AAT Act, considering the terms of that provision.
Approach adopted
I was referred to the remarks of Her Honour in Comcare v Maganga (2008) 47 AAR 487 (a case incidentally which I happened to report) where, at 495, Bennett J indicates that the test for admission of summonsed documents in the Tribunal is not whether:
“the documents will establish anything […] Rather the test of relevance is whether the documents relate to the proceedings such that there is a real possibility that they may assist in the resolution of issues in the proceedings”.
Allowance also must be made for the Court to inspect documents “if they are apparently relevant or are on the subject matter of the litigation”; or “if they might be used for a legitimate forensic purpose in cross examination” that is in relation to credit.
I consider that in the application of s 39(1) of the AAT Act, this is the approach I should follow, and I do not understand that to be something in issue between the parties.
Counsel for TASCO, Mr A Solomon-Bridge, in my view correctly emphasized these expressions in Her Honour’s judgement—“a real possibility” (submitting this is not a reference to “probability”) and “may assist” (submitting this is not a “will” or a “would” assist).
He referred also to certain other authorities including Rayson and Repatriation Commission referred to above, where at 276, Forgie DP said that the Tribunal “may give a direction to the parties requiring them to produce further information that may be relevant …”. Forgie DP then clarified—“I have said ‘may be relevant’ for I do not think that I need to be satisfied that it will be relevant…” (my emphasis).
As was pointed out to me by Mr Solomon-Bridge, Forgie DP in Rayson also referred to several other authorities including Trade Practices Commission v Arnotts Ltd (No2) (1989) 88 ALR 306, where at 103 Beaumont J said the “test of adjectival relevance is satisfied if the material has apparent relevance”. In that case, His Honour regarded adjectival relevance as having been established because “the documentation called for [in the case] could possibly throw light on the issues in the main case” (my emphasis again).
Counsel for NYRSTAR, Mr J Fernon QC appearing with Mr Gent, agreed that there was not much in dispute as far as he was concerned in relation to the principles (set out above) that are applicable.
He did however refer me to a decision of Bromberg J in LPSP v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1563, which relates to
s 33 of the AAT Act where a direction was made compelling a party to participate in a psychiatric examination. His Honour set aside the direction. It is apparent to me, however, that there is world of difference between that case and this one. For one thing, this is not a case about the special issue of human rights and psychiatric examinations. In any event, I understand that His Honour’s decision has been appealed.
Although indicating the principles involved are not themselves in dispute, Mr Fernon correctly pointed out that certain “thresholds” must be reached “In order for a finding of a real possibility or may be relevant” test to be satisfied.
Mr Fernon raised the issue of “fishing”. He indicated that the scope of the documents being sought by TASCO in the information requested—particularly in the use of the word “any”—was “unnecessary” and “onerous”. The scope of documents sought could contain within it numerous receipts, invoices and so on calling for extensive, time consuming and complex searches to be made.
The reference to “fishing” is well known in the law of discovery, and the meaning of that expression is explained by Owen J in Associated Dominions Assurance Society Pty Ltd vJohn Fairfax & sons Pty Ltd (1955) 72 WN (NSW) 250 at 254.
It may well be that ss 33(2A)(a) and 39(1) of the AAT Act do authorise what would be, in a court, a “fishing” expedition, at least in some respects. It may very well be —perhaps even in this very case—that to comply with directions made will be difficult and demanding, not to mention time consuming or even expensive. But if so, I see that simply as a consequence of what statutory provisions in the AAT Act require or allow, if “thresholds” (to use that expression) are met.
In further answer, it also seems to me that the review function of the Tribunal under s 25 of the AAT Act cannot be compromised by the circumstance (alleged) that compliance with directions, if made, is or may be difficult or onerous or tiresome or speculative.
It is the business of the Tribunal to arrive at the correct or preferable decision on the basis of the evidence placed before it. It is not its role to reach a half correct or nearly correct and preferable decision on a basis that other or further evidence of relevance is or was available, but not able to be considered because it was too difficult or onerous for a party to provide it.
I am therefore inclined to not place great emphasis on any suggestion—if one was made-- that the Tribunal should view ss 33(2A) or 39(1) in light of what is permitted or not by the laws of discovery applying in the courts.
Analysis
In accordance with the above, I now turn to the items sought in the application; and I follow the groupings which were adopted at the directions hearing.
In light of TASCO and NYRSTAR failing to reach any agreement at all in the matter, I have no alternative but to go through the items one by one. As to each item, I shall include in parentheses its location on TASCO’s Schedule attached to Draft Directions provided.
I follow the issue groupings I was asked to follow in the Directions Hearing: (a) capacity; (b) safety; (c) efficiency; and (d) environmentally sound management (ESM). Where possible I have relied on these; although not in respect of all items, as I am not clear that they exhaust the issues in the proceedings.
I regard these groupings as satisfactorily denoting most of the major issues in dispute in the proceeding and as being able to be conveniently adopted.
In what follows, I only summarise the positions respectively of TASCO and NYRSTAR, both for and against the item of information disclosure. That may not do complete justice to the ways in which either party puts its submissions on any individual item, but it suffices for me to highlight the matters in hand.
Further, if I say that something has “apparent relevance” I am to be taken as including within my view the “real possibility” something may assist in the resolution of issues. I am not to be taken as meaning that something will assist in the resolution of issues for the very reason that I have not heard the merits of the case.
Even in respect of some item which I do not direct to be disclosed as having no apparent relevance, there is no reason why, on some later occasion, TASCO might not re-apply for it to be disclosed once the positions of the parties are more thoroughly reviewed.
I would not see rules relating to estoppel etc. as having direct application in the Tribunal on this question; and for obvious reasons a doctrine of res judicata would not apply.
Process Documents
1(a) description of Port Pirie slag fumer
TASCO seeks such description including its process capacity, and pollution control equipment (including a process flow diagram for the slag fumer). TASCO submits that this relates to issues (b) and (d). NYRSTAR submits that this information is not, or is not yet, necessary for TASCO; and if needed to obtain expert opinion, there is no indication as to why or for what purpose.
I consider this item does have apparent relevance in the way it was put to me. I cannot say whether its disclosure will mean TASCO must refer it to an expert (there seemed to be vagueness on this point), although that may happen in time.
Also sought is a process flow diagram for the slag fumer. That no doubt could be helpful, and may well exist in the usual course of business; or if not–I would think--could be easily prepared within a short time.
1(b) site plans of Port Pirie facility
TASCO seeks such a document, including one that shows the locations of stockpiled EAF and stockpiled spent slag. TASCO describes this as a “critical” document. NYRSTAR points out that TASCO has never complained about its ability to treat EAF dust until these proceedings; and points also to the involvement of the South Australian Environment Protection Authority (EPASA).
TASCO submits this relates to issues (b) and (d), and “perhaps” also to (a) and (c).
As far as I can tell, this item does have apparent relevance to (b) and (d); and it would be something I would think would be readily to hand, without having to be prepared or drawn up especially.
It would seem to be a document NYSTAR would have readily available in the ordinary course of business; but if it is not, I would think it could be fairly swiftly prepared.
1(c) Process Document
TASCO seeks such a document which sets out how NYRSTAR processes the EAF dust sent to it from TASCO at its Port Pirie facility, and particularly which describes each step that occurs from when the dust first arrives at Port Pirie until the end of the slag fuming process. The response of NYRSTAR is very similar to its response to the previous document—TASCO and its related body corporate have provided EAF dust to TASCO for at least the last two decades.
TASCO argues entitlement to this document arises on the basis of all grounds–(a), (b), (c) and (d).
Given the main issue(s) in the proceedings, I think it is important for TASCO to be informed how the product is managed and kept or dealt with. I note that NYRSTAR apparently has been continuing the process in question for two decades at least.
I consider this item does have apparent relevance, and relates to matters entirely on NYRSTAR’s side of the equation; it being said that TASCO has “very low visibility” of what happens once EAF dust is delivered to NYSTAR.
I would think this document would be available; or if not, could be readily prepared. If the information relates to dealings arising over a long period and which concerns TASCO—as it does—I cannot see that there would any strong commercial-in-confidence issues arising.
1(d) NYRSTAR statement
TASCO seeks a statement from NYRSTAR verifying the Process Document accurately reflects how EAF dust is in fact processed at Port Pirie.
It may well be important, in due course for verification of this process by NYRSTAR. However, I do not consider at this point that this document has apparent relevance.
In itself, the item bears upon an issue of veracity and not fact, and which I consider is a concern only for the Tribunal itself.
Further, parties and not merely those representing them must comply with the obligation of assisting the Tribunal to fulfil the objectives in s 2A of the AAT Act (see s 33(1AB). And it would be a failure to do so if the (so-called) Process Document contained falsehoods.
I regard this item as quite unnecessary at this stage.
In my view, the information sought does not relate to information as such but to confirmation of information and only has perhaps apparent relevance (if any) at some later stage.
EPA Reporting
2(a) EPASA documents
TASCO requests such documents since 1 August 2018 relating to any material non-compliance with NYRSTAR’s licence caused or contributed to by EAF dust and/or stockpiling of spent slag.
TASCO argues the information sought relates to issues (b) and (d).
TASCO strongly contends that the relevant date must be 1 August 2018, as the date when NYRSTAR ‘s export licence began.
NYRSTAR argues that going back to that date is oppressive and intrusive.
NYRSTAR submits that if the information sought is to be allowed, the date should only go back to 1 December 2020.
No argument was addressed to me—although I obliquely suggested there might be one—about whether disclosure of the information would be prejudicial to NYRSTAR in terms of exposure to possible criminal penalties.
I regard the information sought as of apparent relevance.
Being of that view, I cannot see it as an argument that it is burdensome to produce the information, or that it unreasonably intrudes on internal affairs.
It is, after all, information in a sense in the public sector; or at least concerning things happening in the public sector involving a statutory authority.
I also note the terms of previous correspondence between the parties.
I regard the date 1 August 2018 as appropriate.
2(b) Pollution Control incident Register
TASCO seeks a copy of the Register together with records of inspections most recently provided to EPASA by NYRSTAR.
Although it was not quite explicitly stated this way, I think I may take it that this is sought based also on issues (b) and (d).
I think also I may take it that NYRSTAR objects on the same or similar grounds–that collation of documents to convey the information (which could be several or numerous) would be “onerous, unbalanced and unnecessary”.
I can agree it may be onerous and the documents may be numerous, but I cannot agree that the information is unnecessary, given what I understand to be the main issue(s) in the proceedings.
I regard the information sought therefore as of apparent relevance.
2(c)(i) Dust management Plan
TASCO seeks a copy of this plan, required by licence condition U-1189 of EPA Licence 775.
This, I would think, would not be highly contentious. But the objection taken is that it is “a clear example of speculative fishing”.
I have already indicated what my approach is to an objection based on something being allegedly fishing.
I cannot agree that this is “speculative fishing” or a “clear example” of it.
I regard the document as being of apparent relevance.
2(c)(ii) quarterly reporting.
TASCO seeks a copy of quarterly and annual reporting, relating to compliance with the Dust Management Plan since 1 August 2018.
I have indicated above that I consider that date to be appropriate.
I assume the Plan does require reporting of the kind mentioned; but I cannot see the need for documents relating to quarterly reporting if there are to be documents showing annual reporting. I am not prepared to assume, in the absence of evidence, that the quarterly reports—as I understand the notion of quarterly reports—are not faithfully reflected in the annual reports.
As the document(s) sought relate only to annual reporting, I regard the requirement of apparent relevance as satisfied; especially since I regard the Plan itself as disclosable for the same reason.
Fugitive Dust Emissions
3(a)(i) current procedures relating to unloading etc
TASCO requests any current operating procedure, policy or process document, including standard operating procedures for loading and handling EAF dust. TASCO argues relevance on several grounds–particularly (b) and (d).
NYRSTAR opposes disclosure of the information and draws attention to the highly speculative or fishing nature of the request.
In the latter regard, I refer to my remarks above about “fishing”.
This item, I would think, definitely relates to information lying within the province of NYRSTAR.
In principle, having regard to the main issue(s) in the proceedings, I regard the information sought as of apparent relevance.
Questions of business confidentiality were raised; but it was said–if I understand it correctly---that this item relates to product taken to NYRSTAR by TASCO; and there is no evidence that the latter is in competition with the former. There are, in any event non-publication orders which the Tribunal can make, in addition to the Harman undertaking. Further, there could arise an argument based on s 33(1AB) of the AAT Act.
However, I consider the present category is too broadly expressed.
I am not clear why information about “current” procedures should be sought; and I consider I should give TASCO an opportunity to clarify.
Also, I consider that in the event of confidentiality being legitimately claimed, a procedure to safeguard such confidentiality needs to be devised
3(a)(ii) current procedures relating to fugitive dust management plans etc
TASCO requests any current operating procedure policy or process document, including fugitive dust management plans and controls in relation to the unloading and storage of EAF dust.
TASCO argues this item relates to issues (b) and (d). In opposition, NYRSTAR repeats the arguments relating to process documents above.
I am unable to discern any significant difference between this request and the previous one; and the same comments apply.
3(b)(i) documents relating to fugitive dust monitoring: unloading
TASCO requests information included in documents that contain fugitive dust monitoring data and/or incident reporting since 1 August 2018, arising from unloading of EAF dust.
Again, as I understand it, this is sought in respect of issues (b) and (d).
NYRSTAR objects on the same ground, that this item “amounts to speculative fishing”. But it is admitted that NYRSTAR exceeded the lead-in-air limit by 2.5% in 2020. Therefore, it seems correct to allow TASCO to seek out results since 1 August 2018.
Having regard to the main issue(s) in the proceeding, I consider that the item does seek information of apparent relevance. Of course, the item enquires after information within NYRSTAR’s purview—and is fishing in that sense—but I have already indicated my views above about fishing and shall not repeat them here.
I see no justification for confining TASCO’s period of inquiry to a period ending on
1 December 2020 as was suggested by NYRSTAR.3(b)(ii) documents relating to fugitive dust monitoring: stockpiling
TASCO requests information included in documents that contain fugitive dust monitoring data and/or incident reporting since 1 August 2018 arising from stockpiles of dust.
Having given my view with relation to item 3(b)(i), I am not of the view that I must consider this item as of apparent relevance but as before, to require TASCO to clarify how the item can be of apparent relevance as at the present day.
3(c)(i) studies or reports relating to: feeding of EAF dust
TASCO requests information as regards any studies or reports carried out for the purpose of measuring, analysing, or collating data with respect to emissions to air from the feeding of EAF dust into the slag fumer.
I think the relevance of this relates to issues (b) and (d), although I cannot recall this precisely being said and I note the Transcript indicates a malfunction in recording at this point.
NYRSTAR objects on several grounds, including that the item is unlimited in time and scope, is fishing, and calls for the Tribunal to go behind the EPASA grant of licence.
I have already expressed my views about fishing.
I do not consider this item does require the Tribunal to go behind the EPASA granting of a licence; but even if it does, I do not see that as an objection. This is not a case arising in the Tribunal’s migration or citizenship jurisdiction where the rule is that the Tribunal may not go behind an applicant’s conviction.
However, I consider that the objection relating to time and scope is well founded.
I consider I should give TASCO an opportunity to clarify whether the information sought extends to the present day.
Subject to that, I consider this item in principle does have apparent relevance.
3(c)(ii) operation of slag fumer
Having given my view with relation to item 3(c)(i), I am not of the view I must consider this item.
3(c)(iii) feeding of EAF dust
Having given my view with relation to item 3(c)(i), I am not of the view I must consider this item.
3(c)(iv) operation of furnace
Having given my view with relation to item 3 (c)(i), I am not of the view I must consider this item.
Stockpile Management
4(a) photographs
TASCO seeks photographs of stockpiled EAF dust at Port Pirie in the manner it is currently stockpiled. I assume “it” refers to stockpiled EAF dust.
This is advanced on grounds (b) and (d).
NYRSTAR objects on the ground that this item is not necessary, as it will be the subject of further evidence.
In my view it is plainly of apparent relevance.
I consider photographic information of the material should already exist; but that no hardship is caused by calling for it to be provided if it does not.
It is, after all, to be the subject of further evidence, as NYRSTAR says in its objection.
4(b)(i) current procedure etc for storing EAF dust including locations of stockpiles
TASCO requests information concerning any current procedure, policy or process document, including standard operating procedures for storing EAF dust including locations of stockpiles of EAF dust.
Having regard to the main issue(s) in the proceedings, I consider this item does in principle relate to information of apparent relevance.
However, I consider that “location” needs to be further delineated—specifying, for instance, where or near what transport or other facility or facilities TASCO means by the “location” of the stockpiles. A modified request is necessary to narrow the request in my view.
NYRSTAR objects that it is not for the Tribunal to go behind the EPASA licence, and that to search and collate the necessary documents potentially falling within the category is onerous. Further, that TASCO is a competitor of NYRSTAR; and that provision of the information sought could involve significant issues of confidentiality.
I also apprehend a suggestion that if the information is required for expert evidence, then it should be made clear why the expert needs the information.
I consider that suggestion—if it is one made—as unusual; and perhaps rather too early in the proceedings to be made.
In any event, I do not intend to hear from an expert—whoever that may be and in whichever field it may be—on what is essentially a discovery issue of old.
Nor am I concerned about another matter raised in objection by NYRSTAR—that stockpile evidence will be the subject of further evidence at a later stage and is not necessary at this point.
I am of the view that I only need to be satisfied at this point of apparent relevance; and I am satisfied of that—particularly since NYRSTAR even says that this area will be the subject of evidence at a later stage.
I am concerned, however, that confidential information could be sought which should not be disclosed without proper safeguards in place. And I consider these safeguards need to be settled before the information is divulged. Having said that, I note that Counsel indicated that TASCO and NYRSTAR are not strictly competitors (although there was some ambiguity on this point). But I would think the nature of the proceedings themselves suggests otherwise.
I am not troubled by the objection that the Tribunal may need to go behind the EPASA licence process—see my comments above in answer to a similar submission—nor am I troubled by the circumstance that compliance may be onerous; except in that latter regard “location” needs clarification.
The information sought, I would think, would be of a type readily available in the normal course of NYRSTAR’s business and would be information peculiarly within its province.
However, I also consider that TASCO should be given an opportunity to clarify why information relating to “current” procedures is sought.
4(b)(ii) size of stockpiles etc
TASCO requests information concerning any current procedure, policy, or process document, including standard operating procedures, for storing EAF dust including size of stockpiles of EAF dust.
I am unable to detect any different comments I should make to those I have just made.
I consider this item in principle relates to information of apparent relevance.
However, I consider that “size” needs further clarification. TASCO should be indicating whether this means—e.g. height; weight; area and so on. A modified request is necessary to narrow the request, in my view.
4(b)(iii) storage of stockpiles etc
TASCO requests information concerning any current procedure, policy, or process document, including standard operating procedures, for storing EAF dust including how EAF dust stockpiles are stored.
My earlier comments apply here also.
I consider this item relates to information in principle of apparent relevance.
However, I consider that “stored” needs further clarification. TASCO should be indicating whether this means storage on land or underground, or in sheds or other storage facilities, or near transport facilities etc. and also whether the stockpiles are stored in any particular manner beyond that which might be indicated by standard operating procedures. A modified request is necessary, in my view, to clarify what is sought.
Further, I consider I should give TASCO an opportunity to explain why information concerning “current” procedures is sought.
4(b)(iv) volume of storage areas etc
TASCO requests information concerning any current procedure, policy, or process document, including standard operating procedures, for storing EAF dust including volume of available areas.
The question which arises for me is—how does the volume of available storage areas matter? Areas could be available in any place theoretically and how is their availability of any apparent relevance? It is not obvious to me that this item has any apparent relevance.
Accordingly, I do not allow this item; even though it is of the same genre as the others in 4(b).
4(c)(i) stormwater management plans relating to run off etc
TASCO requests a copy of any documents currently in force containing stormwater management plans in relation to run-off from stockpiles of EAF dust or spent slag.
Counsel for TASCO described this as a “critical” documentation; and as relating to grounds (b) and (d).
NYRSTAR however described this as “speculative fishing” and said it will be the subject of evidence; and that the exercise of my discretion does not require the production of such documentation.
I would agree that the production of such documentation is not required in the exercise of my discretion, save though if I form a view that it is of apparent relevance. If I do form that view, for reasons I have already given, I am not troubled by it being regarded by NYRSTAR as speculative fishing.
As to the forming of such a view, I am aided by the consideration that this item will be the subject of evidence; which means the information will be covered in the course of the hearing.
However, I am troubled by the request being framed in terms of the currency of the information sought.
Current information may or may not bear upon the decision under review; and upon the role of the Tribunal in deciding what is the correct or preferable decision.
I would not be troubled if the date of currency was around the date of the reviewable decision.
But I am not clear that it is—or that current information is not relevant, in that it could be relevant in setting up a comparison with what was relied upon at the time of the decision, and then going to show what the correct or preferable decision should have been.
I consider I should allow TASCO an opportunity to clarify why current information, and not merely information current at the time of the reviewable decision, is of apparent relevance.
4(c)(ii) contaminants etc.
TASCO requests a copy of any documents currently in force containing monitoring of contaminants from run-off from stockpiles of EAF dust or spent slag.
The positions of TASCO and NYRSTAR respectively I think are the same with respect to this item as with 4(c)(i).
My position remains the same also. My observations apply with equal force here.
I can see apparent relevance arising out of the main issue(s) in the proceeding, but I am unclear as to how it is that the current information sought bears upon the decision under review. If that was explained, then I have not apprehended the submission clearly enough.
I consider I should allow TASCO an opportunity to clarify why current information, and not merely information current at the time of the reviewable decision, is of apparent relevance.
Volumes of Processing
5(a)(i) EAF dust
TASCO requests information contained in documents showing stockpile volumes at the Port Pirie facility since 1 August 2018 of EAF dust.
Having regard to the main issue(s) in the proceedings, I can see the apparent relevance of this item. I regard the date of 1 August 2018 as the appropriate start date.
NYRSTAR objects on the ground that it is speculative fishing; and on the ground of there being no limits on the volumes of EAF dust that may be stockpiled; and that such volumes in any event do not affect NYRSTAR’s licence.
I have earlier responded to objections based on speculative fishing and I refer to my earlier observations.
I am unclear, however, how NYRSTAR’s licence not being involved is an objection I should place great weight on. If it is not something relating to NYRSTAR’s licence, then I am unable to see what the objection is based on that regard.
Although not specifically raised (as I recall), I am troubled about the extent to which this item could bring about the disclosure of confidential information relating to how NYRSTAR conducts its business, in a way which has no bearing on TASCO or directly on the reviewable decision. If this is so, then safeguards need to be in place to ensure confidentiality is maintained so far as it justly should be.
I am unclear also how documents detailing stockpile volumes including those relating to the present day are sought.
I consider I should allow TASCO an opportunity to clarify why documentation relating to the period after the date of the reviewable decision, including information relating to the present day, is something of apparent relevance.
At the same time, I consider I should allow NYRSTAR an opportunity to clarify for me the objection relating to the non-involvement of NYRSTAR’s licence.
Further, if I am correct on the issue of confidentiality, a safeguard regime needs to be developed between the parties.
5(a)(ii) spent slag
TASCO requests information contained in documents showing stockpile volumes at the Port Pirie facility since 1 August 2018.
The observations and comments I have made in 5(a)(i) apply with equal force here.
I consider I should allow both TASCO and NYRSTAR to further clarify their positions in the ways indicated.
Moreover, a confidentiality issue may arise out of the request by TASCO; and adequate safeguards need to be put in place to protect that confidentiality.
5(b) volumes of EAF dust
TASCO requests information contained in any documents showing the volumes of EAF dust that have been processed at the Port Pirie facility since 1 August 2018.
TASCO indicated that this item goes to a capacity issue. Having regard to the main issue(s) in the proceedings, I can see that the information sought does have apparent relevance.
NYRSTAR replies that this item will be the subject of evidence at the hearing; which, to my mind, indicates of itself that the item has apparent relevance.
Once more, though, I am concerned about the scope of the request; and how it can be justified in extending beyond the date of the reviewable decision.
As before, I am concerned also by an issue of confidentiality—as to how the total volumes have a bearing upon TASCO and the reviewable decision, when this could lead to the exposure of confidential information relating to NYRSTAR’s secret business outcomes or dealings with others.
I consider therefore I should allow TASCO to further clarify its position.
I consider also, in the event I am correct about the issue of confidentiality, then adequate safeguards need to be put in place to protect that confidentiality.
5(c) unplanned shutdowns
TASCO requests data reports in relation to the number and duration of unplanned shutdowns of the blast furnace and top submerged lancing furnace since 1 August 2018.
Having regard to the main issue(s) in the proceedings, I consider the information sought in this item does have apparent relevance.
In that regard, I cannot agree with NYRSTAR’s submission that the information is not relevant to any issue in the proceedings.
Nor do I agree that the information should not be disclosed on the ground of speculative fishing. I have already commented on the fishing notion above.
In oral submissions, Mr Fernon for NYRSTAR indicated that the request was unnecessarily broad in scope and constituted an expensive intrusion on NYRSTAR, requiring production of documents of a significant scale without expert evidence having been put on explaining why this is necessary.
I do not see the Tribunal’s powers to order the disclosure of information predicated on there being expert evidence before a direction is made.
Nor can I see there is any in-confidence information involved in the information sought in this item. Certainly, I cannot recall anything of that nature being submitted to me.
I am satisfied that a request going back only to 1 August 2018 is appropriately limited in scope, at least timewise apparently.
I consider I should give TASCO an opportunity to clarify the date.
Wastewater Management
6(a) processes of washing EAF dust
TASCO requests a copy of any policies, procedures, process diagrams, or manuals currently in force, which set out the process of washing EAF dust prior to processing in the slag fumer, including how any wastewater steam is subsequently managed.
Mr Solomon-Bridge for TASCO described this as a “critical” document and advanced its importance on grounds (b), (c) and (d).
Having regard to the main issue(s) in the proceedings, I consider the documents sought do have apparent relevance and I agree with TASCO.
Mr Fernon said NYRSTAR obviously accepts that it undertakes wastewater treatment on site; and TASCO having “concerns” about this is not enough to take the matter beyond speculative fishing and into relevance.
One short answer to Mr Fernon I think is that it is apparent relevance I am concerned with at this point, and not actual relevance, for the simple reason that I have not entered upon a consideration of the merits of the matter.
I consider I have said enough already about a speculative fishing objection not to be required to repeat it.
Mr Fernon, however, has also raised an issue about confidentiality which is of concern to me. I consider if this is so—and I can see how it might well be—then adequate safeguards protecting confidentiality need to be put in place.
I am concerned also at the request specifying documents currently in force. This is a point I have raised earlier in connection with some other matters.
I am unclear as to how it is or may be that documents in this request, as they relate to a period after the date of the reviewable decision, should be required to be disclosed. I am unclear also whether any or all such documents refer only to documents generated since
1 August 2018. If they or any of them could be documents generated before that date it is not explicit to me (without some assumptions on my part) how such document(s) can have any apparent relevance, as that is the date that NYRSTAR gained the export licence.
In these regards I note that item 6(b) is limited to 1 August 2018 and my expectation is that there would be symmetry between 6(a) and 6(b)—but I may be wrong on that.
I consider I should give TASCO an opportunity to clarify these matters.
6(b) monitoring of wastewater stream
TASCO requests any documents containing records in relation to the monitoring of the wastewater stream generated by washing EAF dust since 1 August 2018.
Having regard to the main issue(s) in the proceeding, I consider that these documents are in principle of apparent relevance.
My position on this item is largely the same as it was in relation to 6(a).
I am satisfied apparent relevance should be my guide—as it is—and I reject any argument that speculative fishing is involved.
However, I repeat my concerns over confidentiality raised by Mr Fernon and I repeat my uncertainty over the apparent relevance of documents showing policies etc. currently in force. I note though that the request does not go further back than 1 August 2018.
I consider that adequate safeguards protecting any confidentiality need to be put in place.
I consider also that I should give TASCO an opportunity to clarify the time span in question, and how it is of apparent relevance for it to extend beyond the date of the decision.
By-Products
7(a) plans and waste by-products
TASCO requests a copy of any process, diagram, or manual (including Landfill Environment Management Plan) currently in force showing how waste by-products from the processing of EAF dust in the slag fumer are managed, transferred and/or disposed of.
Counsel for TASCO submitted that this documentation is “critical” as going to grounds (b), (c) and (d). He referred to information already supplied by NYRSTAR in documentation that some 70% of waste by-product generated by the slag fumer—referred to apparently as black sand—is stored on site.
Counsel for NYRSTAR agreed that there has been reference in documentation to black sand, but that landfill was not something of relevance to that.
I do not consider this is the time or the place to resolve issues of this nature, which will need to await hearing.
But I do consider that the information sought is, in principle, of apparent relevance, having regard to the main issue(s) in the proceeding.
Mr Fernon however raises an issue of confidentiality and I am concerned that the information sought could raise confidentiality issues.
Also, as before in several areas, I am concerned about TASCO wanting documentation “currently” in force. I am unclear how documentation relating to this item which is currently in force relates to the reviewable decision—it could well do so, but it is not clear to me.
In the circumstances, I consider I should give TASCO an opportunity to clarify how it is that current documentation and not earlier documentation is relevant.
I consider also that adequate provision needs to be made for safeguards protecting any confidentiality.
7(b) development approval
TASCO requests the development approval documentation from the Port Pirie Regional Council, referred to in NYRSTAR’s Statement of Facts Issues and Contentions dated 19 November 2021 at [26].
Being referred to in such a way and having regard to the main issue(s) in the proceedings, I consider this documentation is of apparent relevance.
NYRSTAR in opposition says that the issues covered by such documentation will be the subject of evidence; and that the request is one which is speculative fishing and too broad-ranging.
I cannot agree that the request is one which is broad-ranging—indeed in my view it is very specific—and I have previously indicated my views about a speculative fishing objection.
Conclusion
For the above reasons, I have made the directions set out in response to TASCO’s application.
Those directions include directions giving TASCO and NYRSTAR opportunities to deal with certain matters which are of concern to me.
I certify that the preceding 249 (two hundred and forty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member
..............................[SDG]...................................
Associate
Dated: 31 March 2022
Date of hearing: 21 December 2021 Counsel for the Applicant: A Soloman-Bridges & L Stevens Solicitors for the Applicant: Ashurst Counsel for the Respondent: K Eskerie Solicitors for the Respondent: Sparke Helmore Counsel for the Other Party: A Fernon SC Solicitors for the Other Party: HWL Ebsworth
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