How clean is clean? The Ontario Ministry of the Environment is having a very bad year in the courts defending its environmental standards. The latest setback is a decision of the Ontario Court of Justice in the 14-year-old Inco case. In 1994, mine effluent containing nickel escaped into a nearby ditch in severe weather. Inco was charged with breaching the Ontario Water Resources Act; after the third trial, Inco has again been acquitted.
The ministry concluded that Inco was breaching the OWRA after analyzing a sample of the effluent, comparing the result to its Provincial Water Quality Objectives, and performing a toxicity test. Unfortunately for the MOE, the testing methodology that it uses does not match the methodology that was used to develop the Provincial Water Quality Objectives. The PWQO were based on testing the toxicity of bioavailable nickel; the MOE’s protocol is based on the total amount of nickel in a sample. The court agreed: this is comparing apples and oranges. Even the toxicity test was not relevant, because Inco was charged with discharging nickel and the fish may have died because of lime in the water.
If this decision survives the inevitable third appeal, it will require the Ministry of the Environment to make major changes to its sampling protocols and standards so that they are actually based upon relevant science, and not merely upon MOE custom. It could also put a large number of other prosecutions into jeopardy, since the discredited method used in the Inco prosecution has also been used in most other cases.