Ex-Environment Canada officer afraid of being sued

Fears of being held liable stopped him from acting on Vale waste concerns

Published on May 10, 2014

Samples from Vale Newfoundland and Labrador’s mine site at Voisey’s Bay failed a key environmental safety test early in October 2011.

An immediate repeat of the test resulted in another failure, suggesting the company was dispersing toxic waste into the environment.

Environment Canada was aware of the failures, according to testimony heard this week in provincial court in St. John’s.

An ex-Environment Canada officer who was part of an oversight team for the mine said he did not order the company to stop dumping its waste through most of that month, because he believed the company could come after him for damages in civil court.

Vale Newfoundland and Labrador faces three charges connected to the release of the waste, alleging violations of the federal Fisheries Act.

The charges have not yet been proven.

The company is permitted to send out treated effluent — liquid waste — from the mine site and into the waters of Anaktalak Bay on the Labrador coast. The treated effluent requires regular testing and must remain within certain limits set by the federal government.

On Oct. 4, the company reported a failed “acute lethality” test, indicating the waste was lethal to fish. The feed into Anaktalak Bay continued through subsequent testing and test failures until Oct. 31, when the company shut it down.

On Friday, retired Environment Canada officer Ron Hunter testified it was not his responsibility to determine whether or not Vale Newfoundland and Labrador discharged its waste into the ocean on any given day. The company did not require his permission, he said.

Yet he was the man responsible for ensuring the mine complied with Metal Mining Effluent Regulations under the federal Fisheries Act.

On the stand, he was asked to clarify what he meant when, as reported by The Telegram earlier in the week, he spoke about liability being a concern.

“I didn’t want the liability of telling a mine how to do their business,” he said at the time.

“It’s the same thing as officially induced error, basically,” he said, in further explanation prior to the weekend break.

Given his limited understanding of the company’s on-site treatment system and its ability to stop dispensing the waste into the ocean, he said he was not in a position to order the company to stop.  If he made the wrong call, he said, Vale could go after him personally for lost profit and/or damages.

“The company can come back with a civil suit against myself for costing them all that money, Your Honour,” he told Judge Jim Walsh.

Meanwhile, lawyers for the company have outlined a series of failed tests prior to 2011, as well as opinions expressed by consultants and regulators suggesting there was a problem with the sampling and testing rather than the results, noting the results sometimes differed dramatically from lab to lab.

As for the prior variability in test results, Hunter was asked by Crown attorney Mark Steers if there was a continued problem of sporadic test failures during 2011, to the point in time of October 2011 and the events leading to the charges now before the court.

“No, there wasn’t, Your Honour,” he replied.

As of mid-day Friday, the trial is on break for about two weeks due to availability and scheduling conflicts.

The case will be called again on May 27, at which time voir dire proceedings will get underway to decide on the admissability of certain documentation, including email communications and formal reports.

The trial will continue after that, with another representative for Environment Canada set to take the stand.

afitzpatrick@thetelegram.com