Environment Protection Authority v Du Pont

Factual Background Giving Rise to the Application to Amend 12The factual background to this application is, in large measure, found in Environment Protection Authority v Du Pont (Australia) Ltd [2013] NSWLEC 98 (at [4]-[22]). While reliance is placed upon that background for present purposes, it is not repeated here for the sake of brevity. 13In addition to these facts, it was not a matter of controversy that herbicide product containing MSM was manufactured at the Du Pont factory in Girraween as follows: (a) Ally 60 XP (containing 60% MSM), 60 XP AU, 60 DF (containing 60% MSM) and Ally 75 XP (containing 75% MSM) were manufactured at the F&G plant between 30 March and 19 May 2011; and (b) Ally 77 WP (containing 0.6% MSM) was manufactured at the DF plant between 3 and 23 February 2011 and between 18 May and 4 November 2011. 14Furthermore, it was agreed that as at the end of October 2011, the EPA had concluded its MSM sampling program, with samples being taken on the following dates, each detecting MSM in differing quantities: on 2, 4, 5, 12 and 26 August; 1 and 14 September and 4, 7, 27 and 28 October 2011. A sample taken in December 2011 did not indicate any detectable amount of MSM.

How the Charge in the Summons Came to be Framed 15According to the EPA, the charge was framed on the basis that if the MSM detected on the land surrounding the factory emanated from Du Pont's factory, then it had escaped around the time of the manufacture of products in the F&G plant containing 60% or 75% MSM in the period from March to May 2011. 16The EPA relied on an affidavit of Mr Andrew Macdonald affirmed 2 July 2013. Mr Macdonald is a solicitor employed by the Legal Services Branch of the NSW Office of Environment and Heritage which provides legal services to the EPA, including instituting and running prosecutions for the EPA. It is Mr Macdonald who has carriage of this prosecution. One of Mr Macdonald's responsibilities was drafting the charge in the summons. 17In his affidavit he deposed that he first prepared the initial drafts of the summons in early December 2011. The drafts were subsequently modified and the summons was finalised shortly before 4 April 2012, the date upon which the prosecution commenced. 18He states that when drafting the summons he considered the dates on which it would be alleged that the offence of land pollution took place. In determining those dates he states that he relied upon the evidence that he had been provided with by the EPA's leading investigating officer in the matter, Mr Gregory Abood. This evidence primarily consisted of documents which, although not currently before the Court by way of tender, are exhibits "GA 1" and "GA 2" to the first affidavit of Mr Abood sworn on 28 March 2012 in these proceedings. 19Mr Macdonald stated that the main documents he relied upon were: (a) Du Pont's Preliminary Report dated 29 August 2011 prepared in response to a Notice of Preventative Action issued by the EPA on 19 August 2011 and a Notice to Provide Information and/or Records. The Notices required Du Pont to, amongst other things, investigate and identify the location and possible causes of any emissions of herbicides or material containing herbicides and to produce documents in respect of its operations and the incident. The Notice of Preventative Action also required Du Pont to prepare a report of its investigation and furnish it to the EPA; (b) Du Pont's Final Report (the Site Investigation Report) dated 13 September 2011, prepared in response to the EPA's Notice of Preventative Action (this Report was again formally provided to the EPA by Du Pont on 8 November 2011 in response to the Notice to Provide Information and/or Records); and (c) the transcript of an interview conducted by Mr Abood with an employee of Du Pont, Mr Harry Singh, on 23 November 2011, including the documents shown to Mr Singh during the course of that interview. 20According to Mr Macdonald, a study of this material revealed the following to him: (a) the Preliminary Report disclosed that there were two main manufacturing plants located at the factory: first, the DF plant, which was involved in the manufacture of "speciality herbicides"; and second, the F&G plant, involved in the processing of products containing MSM on a campaign basis. In particular, a product containing MSM (Ally® 60) was processed in March/April 2011. Moreover, this was the only campaign of this product conducted by Du Pont at the F&G plant during 2011. The Report went on to note that Du Pont had no record of any onsite spill incident at the factory in the past decade and that no abnormal or fugitive emissions could be identified; (b) the Final Report confirmed the information provided in the Preliminary Report. It stated that an MSM based product (Ally® 60) was processed in a campaign commencing on 28 March 2011 and ran through to April 2011, and that this was the only campaign of this product conducted by Du Pont at the F&G plant during 2011; and (c) the interview with Mr Singh gave rise to an understanding that a campaign for Ally® 60 XP commenced on 4 April 2011 and concluded on 6 May 2011 and another such campaign commenced on 9 May 2011 and concluded on 13 May 2011. 21Based on this material, Mr Macdonald therefore drafted the summons with the charge period of 4 April 2011 to 18 May 2011. 22However, on 15 June 2013, Mr Macdonald received a copy of Du Pont's objections to the EPA's evidence. One of the categories of objections raised was the relevance of the post incident sampling. The objection was to the effect that sampling was such that it was impossible to discern what part of MSM identified in any sample was referrable to campaigns of products containing MSM that occurred before the charge period, during the charge period, or after the charge period. For example, it was noted that during the post charge sampling "ie, from 18 May 2011 to November 2011, the D&F Plant was producing Ally 77 WP" whose active ingredients included 0.6% MSM. 23Then on 21 June 2013 Mr Macdonald received from Du Pont's solicitors a copy of a document entitled "Herbicide Produce Campaign - November 2010 to November 2011". This document also indicated that the product Ally® 77 WP was manufactured at the D&F Plant between 18 May and 4 November 2011. It contained 0.6% MSM as an active ingredient. 24After receiving the copy of the objections and the document referred to above, Mr Macdonald returned to the documents used in the interview with Mr Singh and examined them more thoroughly. During this examination he noted that the documents contained records of production for Ally® 75 WP in the weeks beginning 7 February 2011 and on other weeks leading up to and including the week beginning 8 August 2011. 25Mr Macdonald states that he "overlooked" those records at the time that he was drafting the summons. 26Mr Macdonald was cross-examined. The cross-examination revealed that: (a) he accepted that when he first started to prepare a draft of the charge in early December 2011 he had available evidence that showed that MSM was contained in the product Ally® 77 that had been manufactured at, and potentially released from, the DF plant outside the charge period ultimately adopted. In addition to the material referred to by him in his affidavit, this included information that EPA officers had on 2 August 2011 sampled the environmental side of the HEPA filters in both the DF plant and the F&G plant and the results showed that MSM had been detected in the environmental side of the stack in both plants. Moreover, from September 2011 onwards the EPA had full inventory and production records for the DF plant and these records showed details of the production of Ally® 77 at the factory and that Du Pont had provided technical details of the various herbicides that were produced in both the F&G plant and the DF plant showing that Ally® 77 contained a small percentage of MSM; (b) at the time the charge was drafted, he believed that the most likely scenario was that the MSM was emitted from the F&G plant and not from the Ally® 77 produced at the DF plant; (c) the formulation of the charge was not based on a misunderstanding about what was produced at the DF plant during 2011, but rather on a belief that the EPA had insufficient evidence to sustain beyond reasonable doubt that the damage the subject of the prosecution came from the Ally® 77 produced at the DF plant; (d) believing that the MSM emanating from the F&G plant, associated with residents' evidence of a dust release some time over the Easter weekend in April 2011, was the cause of the damage, he assembled a case to prove this. With the exception of an affidavit from one resident, the lay evidence, however, did not address dust fallout observed by witnesses before the charge period. And the focus of the case he was assembling identified damage occurring before mid July 2011; (e) the evidence of EPA investigators did not address the question of whether the dust fallout occurred before the charge period; (f) significantly, the expert evidence necessary to sustain the allegation that the MSM emitted from Du Pont's premises caused the damage to the vegetation was focused on a presumed emission from the F&G plant during the April/May campaign (namely, the evidence of Mr Chris Lee-Steere - ecotoxicologist; Dr Gary Vaughan - environmental chemist; Mr Anthony Savage - atmospheric scientist; Dr Derek Griffiths - engineer and risk management consultant; Mr Gregory Steenbeeke - environmental planner and vegetation ecologist; and Dr Christopher Nadolny - ecologist). None of these expert reports addressed the possible release of MSM particulates from another plant outside the charge period as causative of the environmental damage the subject of the charge; (g) while the case was underpinned by expert evidence as well as lay observations, and notwithstanding that the expert evidence put forward in support of the EPA's case on the F&G plant was "critical" to sustaining the charge against Du Pont, the EPA had no expert evidence to sustain the allegation that release from the DF plant during 2011 of MSM caused or contributed to the damage the subject of the charge; and (h) the EPA had no intention of leading any further expert evidence in support of the extended charge period and that if permitted to amend the summons to extend the charge period, reliance would be placed exclusively on the existing expert evidence already filed in the proceedings. The Application to Amend Must be Refused 27The EPA submitted that by extending the charge period it was not in any way changing the substance of the charge. The offence with which Du Pont was charged would remain the same, viz, the pollution of land in the Girraween area caused by an emission of MSM laden dust from the factory. All that would alter was a particular of the offence, namely, the period during which it was alleged that the dust escaped or was emitted from the factory. 28The reason given by the EPA for the amendment was simple: to ensure that it captured all emissions that could account for the damage the subject of the charge. Or as Du Pont put it, "in case" it "missed something". 29This, Du Pont submitted, was no reason at all, or at the very least, not one that would persuade the Court to exercise its discretion in favour of permitting the amendment. Du Pont also submitted that, as the cross-examination of Mr Macdonald revealed, the amendment was futile insofar as there was no expert evidence that could support the charge in its expanded form. Finally, Du Pont complained about the lateness of the amendment, although it did not go so far as to say that it would be prejudiced by it. 30I accept the submissions of Du Pont. In my opinion the application to amend must be rejected for the following reasons: (a) first, in my view, the amendment will mean that the substance of the charge is not based on the same facts and the offence is therefore changed. Critically, the amendment will incorporate new campaigns of different products containing MSM than those understood by all parties to be the alleged source of the fugitive dust, some of which were processed in a different part of the factory, namely, at the DF plant. To date the focus of the preparation of the parties has been on dust allegedly emitted from the F&G plant during the April/May campaigns. By amplifying the charge period, the EPA will significantly enlarge the factual scope of the proceedings. In short, it will not be the same case; (b) second, although it was suggested that the need for the amendment was due to an initial oversight by Mr Macdonald in reviewing the material before him when drafting the charge, his cross-examination revealed that in fact no mistake was made by the EPA in this regard. Rather, a forensic decision was taken by the EPA to limit the charge period in the way it did because it believed at the time that the most likely scenario was that the pollution occurred by reason of the escape of MSM dust from the F&G plant during that period. This was not a case of oversight; (c) third, no cogent explanation has been given for the delay in bringing the application to amend, especially given how late the application was made - during the second week of a four week hearing and on the eve of its witnesses being cross-examined (cf Environment Protection Authority v CSR Ltd [1999] NSWLEC 99; (1999) 103 LGERA 161 at [38]). Although the EPA states that it was not alerted to the need to amend the charge until receipt of Du Pont's objections to its evidence, in my view, this is unsatisfactory and not enough to engage the Court's discretion to permit the amendment. This is particularly so when the objections were received on 15 June 2013 but the EPA did not foreshadow amending the charge until 23 June 2013, that is to say, one calendar day before the commencement of the proceedings: (d) fourth, as the cross-examination of Mr Macdonald forcefully demonstrated, to allow the amendment would be futile given the central importance of the expert evidence in this case and the complete absence of any expert evidence in support of an expanded case. It is highly unlikely that an emission attributed to the expanded charge period could be sustained beyond reasonable doubt; (e) fifth, although Du Pont was careful not to state that it would be prejudiced by the amendment or that, if permitted, it would necessitate an adjournment of the proceedings, neither did it categorically state that these outcomes would not eventuate. At the very least, however, Du Pont noted that it would need to consider its position, and it may be reasonably inferred that some amount of time would be required for this to occur in the interests of fairness; (f) sixth, in the absence of having sought instructions and fully considered its position, Du Pont acknowledged that potential unfairness could result if the amendment were permitted. Du Pont has constructed its defence in response to the charge period as framed in the summons. To alter the parameters of the time period for the commission of the offence at this late stage would almost certainly cause delay in the finalisation of the proceedings, which, in light of the adverse reputational impact the proceedings are likely to be having on Du Pont, would be unfair in all the circumstances. Justice delayed is all the more justice denied in criminal proceedings; and (g) seventh, the EPA's stated position was that if the amendment was refused, the prosecution would nevertheless proceed. Accordingly, the public interest in bringing these proceedings is maintained irrespective of the outcome of this application. Conclusion 31For the foregoing reasons, I do not consider the amendment to be necessary in the interests of justice. On the contrary, to permit the amendment would be antithetical to those interests. The application to amend must therefore be dismissed. The exhibits are to be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 July 2013