Inco Ltd. is accused of polluting Grassy Creek near Levack Mine

High nickel levels in discharge says scientist - Inco Ltd. is accused of polluting Grassy Creek, located near Levack Mine

By Denis St. Pierre, The Sudbury Star

November 01, 2003

Local News - A massive discharge of mine effluent into a creek by Inco Ltd. in 1994 contained high levels of environmentally harmful nickel, a scientist testified Friday.

"Nickel is a metal that can exert a toxic effect at very low concentration," Julie Schroeder testified during the Sudbury trial into pollution charges against Inco.

In the Inco case, "we're talking about concentrations that are so much higher" than minimal impairment levels, said Schroeder, an expert with the Ministry of the Environment.

Inco is being tried in the Ontario Court of Justice on two charges of violating the Ontario Water Resources Act in January and February of 1994. The company is accused of discharging millions of litres of untreated effluent from its Levack Mine property into Grassy Creek over an eight-day period.

Inco was convicted and fined $24,000 following an initial trial on the charges in 1997, but a second trial was ordered following a lengthy appeals process.

On Friday, Schroeder testified that mine effluent with nickel concentrations as low as 0.5 parts per million can be environmentally harmful.

In the case of the Inco discharge in 1994, the effluent contained nickel concentrations as high as 48 parts per million, she said. As well, the discharge into Grassy Creek continued unabated for eight days, she noted.

As a result, it is apparent that the nickel levels in the Inco discharge represented an environmental "impairment," said Schroeder, who conducted laboratory tests on water fleas to help reach her conclusion.

Schroeder's testimony began a day later than expected, as a result of a failed attempt Thursday by Inco to block her from appearing as a Crown witness.

The arguments over Schroeder's suitability as an expert witness led the environment ministry's lawyer to challenge the credibility of an Inco witness.

Ministry lawyer Jerry Herlihy questioned part of the testimony of Gordon Craig, a self-employed scientist hired by Inco for the trial. Herlihy called on Justice Guy Mahaffy to reject what he characterized as Craig's sudden recollection of a meeting he claimed he had with Schroeder more than six years ago.

Although Schroeder now works for the environment ministry, in 1997 she was employed at a private laboratory. At the time, the private lab was conducting tests for Craig, who in turn was working for Inco.

Inco lawyer Doug Hamilton argued Schroeder held a key position with the private lab that was doing work for Inco in 1997. As a result, there was a conflict of interest that should prevent Schroeder from testifying against Inco during the current trial, Hamilton argued.

Under questioning from Hamilton, Craig said he had a face-to-face meeting with Schroeder sometime in the summer of 1997 to discuss tests being done for Inco.

Craig said he could not recall specific details of the brief conversation with Schroeder, nor was he sure if he had any record of the meeting. Herlihy pointed out that it wasn't until the Inco lawyer questioned Craig three times on the same issue that Craig asserted he had a distinct memory of meeting with Schroeder.

When the question was raised the first two times, Craig testified he believed he "would have" had a discussion with Schroeder, Herlihy noted. During her testimony on the issue, Schroeder said she had no recollection of any involvement with anyone working for Inco in 1997.

Schroeder acknowledged she initialed a report on testing done by another lab employee for Inco at the time. But that was a routine check of a colleague's calculations, one of thousands of such verifications she had done at the lab, she said.

Herlihy argued Schroeder should be allowed to testify in the Inco trial because she had no direct or substantive involvement in work done for Inco in 1997.

Although Mahaffy did not comment on the issue of credibility of Craig's testimony, the judge ruled in the environment ministry's favour, allowing Schroeder to testify.

Shortly after Schroeder took the witness stand Friday, Inco attempted to block part of her testimony, but the company was rebuffed by the judge again.

Hamilton objected when Schroeder referred to a statistical analysis of laboratory test results. The Inco lawyer argued Schroeder should not be allowed to introduce such evidence because she was not qualified as a statistician.

The judge disagreed, saying Schroeder's evidence was within the scope of her expertise.

However, Inco did succeed in another attempt to block an expert witness put forward by the environment ministry.

Inco raised concerns over objectivity and bias issues about the proposed testimony of scientist Pakwing Mak, who works in the environment ministry's investigation and enforcement branch.

The judge basically agreed with Inco's concerns because Mak works with the branch of the ministry that filed the initial charges against Inco in 1994.

The trial was adjourned indefinitely Friday and it appears it may not conclude until the new year, possibly a full decade after the 1994 discharge.

Dates for the trial's resumption will be selected November 19th.