Vale lawyers suggest testing was flawed

Effluent check results differed lab to lab, day to day

Published on May 9, 2014
Doug Hamilton, shown in provincial court Wednesday, is representing Vale Newfoundland and Labrador in an ongoing trial on an alleged case of three violations of the federal Fisheries Act, tied to the illegal dispersal of waste from the Voisey’s Bay mine. The company is also represented by Michael Rosenberg. The two have set out a history of inexplicable results in testing of the waste over the course of several years — an issue the company was working to understand and address.
— Photo by Joe Gibbons/The Telegram

In life, it’s commonly said, you win some and you lose some.
As provincial court in St. John’s heard Thursday, for years the same was apparently said by federal enforcement officers of tests for “acute lethality” conducted on waste flowing from Vale’s Voisey’s Bay mine site.

Effluent from the nickel mine flows into Edwards Cove in Anaktalak Bay on the Labrador coast.

For years prior to 2011, and before Vale made a pricey addition to its on-site treatment plant, the company was seeing sporadic failures in a key test on mine effluent. Results were coming in higher than the government’s regulatory guidelines.

Vale Newfoundland and Labrador faces a trio of charges under the federal Fisheries Act, related to accusations it released effluent acidic enough to kill fish over the course of almost a month, in October 2011.

On the second day of trial, the questioning of former Environment Canada officer Ron Hunter continued and focused on the history of the problems with the mine’s effluent test results.

Hunter, now retired, was responsible for assuring that the Voisey’s Bay mine was in compliance with Metal Mining Effluent Regulations under the Fisheries Act.

Vale lawyer Doug Hamilton walked him through monitoring reports and emails between the company and regulators written in 2008 and 2009.

Hamilton highlighted repeated examples where the lab hired by the company to test its treated mine effluent at the point of its release into the cove, produced wildly varying results, when compared to samples tested at other labs, according to Vale's lawyers.

Those variations were significant — the difference between passing and failing.

The primary lab for the testing is in St. John’s, currently operated by Stantec. It was then known as Jacques Whitford, before Stantec acquired that company in 2009.

As test failures occurred, the company and Environment Canada tried to try to figure out why they were happening and address the problem, according to testimony Thursday in Courtroom No. 3.

Additional testing suggested the results might not consistently and accurately reflect the toxicity of the mine waste.

In one case, a test sample showed 100 per cent mortality in the fish exposed to it. Yet a sample from the mine on the same date, sent to AquaTox Testing and Consulting in Guelph, Ont., resulted in only 30 per cent mortality — a “pass” under the regulations.

Repeatedly, the differences in testing were stark: 80 per cent mortality versus zero, 70 per cent versus 10.

In one instance, said Hamilton, two tests were done at the Jacques Whitford lab using a portion of a single sample from the mine — one beginning the day after the other. The tests returned entirely different results, with one showing zero fish deaths and no issues, and the other showing 100 per cent mortality, suggesting the waste could be acutely lethal and dangerous for the environment.

Hamilton read from a report showing test results from November 2008 to January 2009: “there is considerable variability in the results between labs for the acute lethality tests.”

“It, Your Honour, was something that I was aware of, but not understood,” Hunter said.

So, was the mine waste safe or not?

Given the varied results, Vale established an “effluent toxicity investigation team.” Environment Canada had a toxicity expert look more closely at the issue as well.

Snippets of reports and emails read in court suggested the company, consultants and Environment Canada experts believed there was a problem with the testing, rather than the waste being lethal, though nothing was certain.

One theory was that test samples  were being affected by how they were stored and transported.

According to guidelines for collecting samples, attributed to Environment Canada and reportedly written by a committee that included Hunter, samples should be kept at a temperature no lower than 4 C and never allowed to freeze or get too warm.

“None of the samples at the Voisey’s Bay mine site strictly followed — especially the temperature ...,” Hunter said, trailing off for a  moment.

“I don’t know of any samples taken at site there that would have been held at four degrees Celsius. … It was just simply logistics, Your Honour.”

On Wednesday, he said he lost samples he had collected on at least one occasion, after having to send them to the Vale port site for shipping. The shipment never arrived on the island, he said, suggesting it was lost in transit.

Meanwhile, the company paid additional consultants for more tests and later brought in engineers to develop an add-on to its wastewater treatment plant. The costs to Vale reached into the millions of dollars.

In response to questioning Thursday, Hunter said he was not aware of any orders to Vale Newfoundland and Labrador — prior to October 2011 — to halt the release of effluent from the mine when the acute lethality testing returned with failures.

Vale’s lawyers claimed one Environment Canada official told the company that there was no need to automatically stop releasing effluent because of failed tests.

The Telegram has not seen any documentation to that effect. Nor has it seen test results, inspection reports or other documents referenced at trial. Some of the paperwork remains under discussion in terms of its admissability and a decision could be made on that later this month.

Environment Canada has been contacted for clarification of its oversight work, including the policy on responding to failed acute lethality tests.

The provincial government has declined comment while the case is before the courts.