Court file no.

: 12023 /01

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: WILFRED ROBERT PEARSON Plaintiff - and -

INCO LIMITED, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, THE CORPORATION OF THE CITY OF PORT COLBORNE, THE REGIONAL MUNICIPALITY OF NIAGARA THE DISTRICT SCHOOL BOARD OF NIAGARA, and THE NIAGARA CATHOLIC DISTRICT SCHOOL BOARD

Defendants

SUPPLEMENTARY AFFIDAVIT OF DR. THOMAS BURNETT Sworn April 10, 2002

I, Thomas Burnett, of the Town of Whitby, in the Region of Durham, MAKE OATH AND SAY:

1.

I am a chemical engineer, and as such I have knowledge of the matters to which I herein depose, save and except where I have been advised of the same, in which case I believe such information to be true.

2.

I have reviewed the affidavit of Dr. Bruce Conard sworn March 21, 2002 (the Conard

Affidavit) and wish to make the following comments in response. The Inco Stack 3. In response to paragraphs 10 (a), 11, and 12, in large part the reason for concluding that the Refinery lacked a proper stack during its early years of operation is the fact that the MOE (and now also Inco) have indicated that much of the high level of contamination in the Rodney Street area most probably resulted from fugitive emissions. Fugitive emissions within a few hundred metres of a facility indicate that even if a stack was installed, either (a) individual sources of contamination were not connected to the stack system, or (b) other materials handling practices or operating practices were so improper as to allow excessive amounts of contamination to escape. This in fact appears to have been the case in relation to, for example, the anode furnaces at the Refinery, which I have been unable to find any record of their connection to a large stack.

4.

Moreover, five smaller stacks are clearly visible coming from what is understood to be the anode furnace building, located approximately half way up the left hand side of the page and half way between the left margin and the large stack shown in the picture identified in Figure 98 of Exhibit B to my original affidavit. It is also important to note that if the anode furnaces would have been connected to the large stack visible in the picture, a flue and fan building would have been required to connect the two structures. None is visible.

5.

In addition, having reviewed the MOE mapping of nickel contamination in more detail, given the pattern of deposition shown in this mapping, it would also appear that the stack height was clearly inadequate to allow the stack to function as a practical dispersion device. This in

large part explains the high levels of contamination found in areas also in close proximity, but North-East of the Refinery.

6.

Based on the large amount of fugitive emissions that appear to have been the primary reason for contamination of the Rodney Street area, and based on the elevated levels of contamination North-East but close to the Refinery, the fact that Inco did have a stack would not alter in any way the conclusion that Inco failed to operate the Refinery in a reasonable or prudent manner.

My Experiences at the Port Colborne Refinery 7. In response to paragraph 10(b), it seems clear that Dr. Conard himself is unfamiliar with the physical layout of the Refinery site and has been misinformed by Mr. Reed. More specifically, the research stations were behind the same fenced area as the Refinery with a road leading from the main gate through the Refinery to the research stations and the south gate. This can be seen from aerial photographs of the site, also found in the Winning of Nickel and excerpted in Exhibit B of my original affidavit. Research employees as first time visitors such as I was in 1970 reported to the main gate to receive a signed photo identification pass from Mr. Barker, the manager, which then allowed them to drive their vehicle through the south gate for security clearance on their future visits. In addition to sharing the site, the research stations and Refinery also shared accounting, benefits administration, maintenance, purchasing and most other routine administration.

8.

In response to paragraph 10(c), it is seems clear that both Dr. Conard and Mr. Reed are also unacquainted with my experiences within the Refinery itself. For example, in 1980, I, Mr. D. Lowney of Inco and Mr. R. Parlour of the Canadian government visited Albania to meet with officials of the government of Albania and the University of Tirana who had expressed an interest in buying a licence and the know-how for refining domestic nickel.

9.

In preparation for the trip, I revisited the Port Colborne Refinery processing areas to study the process in detail, and spent considerable time discussing the design details and processing options with the former assistant manager of the plant, Mr. W. Spence, who had been in charge of the operation and maintenance of the plant.

10.

In the 1980 meetings in Albania, I provided the technical knowledge and support to the Government of Albania in the areas of the metal anode process, as well as explaining other options for refining the basic nickel-cobalt carbonate being produced in Albania..

11.

Approximately six senior people from Albania then came to Canada in the summer of 1980 for meetings about the Port Colborne Refinery, and were given full tours of the Refinery by myself and Mr. Spence.

12.

I continued in a managerial role for the project within the engineering group to ensure that the technology transfer went as planned, reviewing drawings and specifications for the new facility being prepared in Germany based on a very close copy of the Port Colborne Refinery.
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13.

Consequently, through this process alone, I was personally very familiar with the design, layout and operation of the Port Colborne Refinery facility.

14.

More generally, I have also performed numerous conceptual engineering studies throughout the world, including one for a nickel oxide production plant in India. I have also done detailed process design of dust collection equipment for two companies in the United States which licensed the Inco flash furnace process in the 1980s. I also did process design calculations for numerous plants in Canada, the United States, Guatemala, Indonesia, Wales and Japan. All of this work was also based in part, or in whole on my knowledge of the Port Colborne Refinery and its various other processes.

15.

In response to paragraph 10(d), it would also appear that Dr. Conard has overlooked the fact that at the time I accepted the position of Incos Director of Environmental Affairs in 1989, the Refinery had already ceased production of electrolytic nickel 5 years earlier and that portion of the facility had been moth-balled for some time.

Re-Entrainment and Groundwater Contamination 16. In response to paragraph 16, the largest issue facing Port Colborne today does not appear to arise from the current rate of production related emissions (which as stated in my original affidavit still do continue even to the present day to some extent), but instead arises from the ongoing release/escape of contamination from the Inco site via re-entrainment of contaminated soil and from contaminated ground water leachate.
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17.

I have spoken with Mr. Allen Baldwin (former MOE Welland staff), and have been advised that although Inco continued to add abatement devices into the 1970's and early 1980's, the MOE did not observe a corresponding drop in air emission readings from monitors in the community. This caused the MOE to investigate further by taking samples from various materials, including road dust, in the vicinity of the Refinery. These samples contained significant amounts of, at minimum, nickel. This and other factors indicated that the most likely source of air contamination was ongoing re-entrainment of contaminated material.

18.

This form of contamination still continues to occur, as evidenced by the most recent Port Colborne air monitoring data, which although there is good reason to believe underestimates the problem, still shows that Port Colborne has the highest average concentrations of airborne nickel anywhere in Ontario (see MOEs October 2001 and March 2002 Rodney Street Community Reports).

19.

In addition, in the late 1990's Inco was forced to install a purge well system along the perimeter of the Refinery site to attempt to control contaminated ground water leachate that was escaping from an area near and under the former tank house building.

20.

In terms of emissions from the plant today then, while each of the Contaminants of Concern are still being actively emitted (as evidenced by the NPRI data referenced in my previous affidavit), the ongoing escape of contamination in the form of re-entrained materials and
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groundwater leachate leaving the Inco site appears to be an even more significant source of contamination.

Contamination from Other Sources 21. In response to paragraph 23, the suggestion that some source other than Inco may be responsible for the high levels of contamination in Port Colborne is clearly untenable for the following reasons.

22.

First, Inco has already publicly and repeatedly acknowledged responsibility for nickel, copper and cobalt in the surface soils of Port Colborne.

23.

Second, the MOE in its Rodney Street Community reports continues to produce scientific evidence that links Inco to, at minimum, nickel, copper and cobalt in area soils.

24.

Third, using nickel as an example, in Exhibit F of the Conard Affidavit Inco provided a copy of a report by the USEPA entitled Locating and Estimating Air Emissions From Sources of Nickel. The EPA report states that the emission factor for nickel from coking ovens (the major nickel source that might have been contributed from the Algoma foundary site) is 0.0016 lb Ni per ton of coke.

25.

The 1980 MOE Report on emissions in Port Colborne (found in the affidavit of Allen Baldwin) indicates that the Refinery typically emitted approximately 500,000 lb/yr of nickel.
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Other reports indicate that the average production prior to 1960 was about 100,000,000 lb/yr. This indicates that the emission factor for Port Colborne was 0.005 lb/lb or 10 lb/ton, to put it in the units used by the EPA.

26.

Based on these rates of emission by Algoma and Inco, it would appear that the nickel emissions from the Refinery would be approximately 6000 times higher than that of the Algoma coking ovens west of the Inco facility, and perhaps even more when the different production rates of Inco and Algoma are taken into account.

27.

The only other major atmospheric sources of nickel emissions in the area would have been an area cement plant and a stainless steel plant, both of which were downwind of the refinery, and minor emissions from the combustion of fuels throughout the area. This latter amount would be extremely small and spread largely along major roadways, if it could be detected at all.

28.

In this regard, the emission plume from the stainless steel plant is clearly visible in the soil concentration maps published by the MOE. However, there is no evidence of nickel contamination from the cement plant or from fossil fuel emissions (ie. cars etc.) beside any of the roadways in the area.

29.

The only other large processing industries close to Inco were the flour mills, which may have emitted minor amounts of cadmium and other trace metals, but would not likely have emitted
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nickel.

30.

As a result, there can be little doubt that, as the MOE has also concluded, the nickel in Port Colborne came almost exclusively from Inco.

No Changes in the Composition of Nickel Emitted by Inco 31. In response to paragraphs 38 to 47, first, it should be noted that the processes of change in the various forms of nickel described in the Conard Affidavit do in fact occur. However, in the case of all of the forms of nickel identified by Dr. Conard, these processes either occur very quickly (eg. in the case of nickel sulphides and sulfates, where the substance would have dissolved long ago) or very slowly (eg. in the case of nickel oxide or nickel metal, which breaks down over a course of thousands, or even millions of years). Consequently, with all but a few minor exceptions, the forms of nickel currently found in the soils of Port Colborne would be quite stable, and would not be expected to change significantly, or in some cases NOT at all for hundreds of years.

32.

Second, it should be noted that with the exception of nickel metal, every form of nickel identified by Dr. Conard has been assessed by Health Canada, and has been determined to be a Group One Carcinogen, ie. a substance known to cause cancer in humans, with a risk of cancer existing at any level of exposure.

Speciation of Nickel in Port Colborne Soils

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33.

In response to paragraphs 50 and 56 through 58, initially it is important to note that nickel oxide not only exists in crystalline states, but also exists in amorphous states. Consequently, the fact that nickel may have been detected in an amorphous form does not rule out the possibility that the nickel is in fact nickel oxide. Furthermore, nickel in an amorphous state is in fact soluble nickel. Health Canadas CEPA review of nickel determined that soluble nickel in any form is a Group One carcinogen (ie. once again, a substance known to cause cancer in humans).

34.

As well, it is important to recognize that both the SEM and XRD speciation techniques used by Inco and its consultants have very significant limitations, in that the latter is not able to address substances in amorphous (as opposed to crystalline) forms. Consequently, the analysis referred to in most of the exhibits produced in the Conard Affidavit is in fact quite limited, and the former is only a method of physical examination superior to standard optical microscopy. This also explains the variations in speciation results that Inco obtained from various labs, ie. the variations were not caused by differences in the samples themselves, but instead simply reflect the fact that each of the variety of test methods employed has various limitations.

35.

In response to paragraph 60, it should be noted that entry of carcinogenic particles into the human lung is not necessary in order for cancer to occur. Both nasal and throat cancers have been attributed to the forms of nickel found in Port Colborne soils in the research relied upon by Health Canada to determine that these substances are in fact carcinogenic.
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36.

In response to paragraph 62, it should be noted that Inco has failed to produce any of the actual test results or analysis for examination, clearly leaving the reader to wonder why Inco has chosen to have this material remain undisclosed. In addition, from the short passage that is produced in the Conard Affidavit, it is evident that even the author of this particular report lacks confidence in her results when she states that due to unexplained discrepancies between sample results caution in any interpretation of the data is necessary.

37.

In response to paragraph 63, it is important to note that the XAS analysis of Rodney Street area soils performed on behalf of Inco directly concurred with the XAS analysis conducted on behalf of the plaintiff, ie. all of the scientists completely agreed that the predominate form of nickel in that area of Port Colborne is nickel oxide.

38.

At the same time, the sample XAS analysed on behalf of Inco from further downwind of the facility appears to have been in a disordered nickel hydroxide state. However, the fact this may have been a form of nickel other than nickel oxide is once again of very limited practical importance. Hydrated oxidic nickel, which is another expression for nickel in a soluble state, as noted above is also by definition a Group One carcinogen according to Health Canada.

39.

In response to paragraph 64, it should be noted that Inco has once again failed to produce the report/analysis that it purports to rely on.

40.

Generally then, in response to Dr. Conards conclusions regarding speciation (which are
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found in paragraph 65 of his affidavit), it should be noted that unlike as suggested by Dr. Conard, the results from the Rodney Street area are not disparate at all. Instead, as noted above the plaintiffs XAS speciation (which Conard admits concurs with Incos), together with other testing employed by Incos consultants, have all concluded that nickel oxide is present in large amounts in the Rodney Street area.

41.

Furthermore, as also noted above, the forms of nickel that Incos consultants have been able to identify outside of the Rodney Street area have been species of nickel that are also known cancer causing agents in humans ie. Health Canada Group One carcinogens.

42.

In addition, given that reliable data has yet to be produced or accepted by Health Canada to distinguish the carcinogenic potential of each of these individual forms of nickel, for toxicological purposes each form of nickel that has been identified to date in Port Colborne soils can then only be treated as being the same.

43.

Consequently, all of the data produced by Inco regarding speciation in fact supports the conclusion that for practical purposes, little, if any variation in the forms of nickel found in Port Colborne exists today.

44.

It should also be noted that while speciation has yet to be conducted for air, dust or ambient material found inside homes in the Port Colborne community, there is every reason to believe that these all would contain the same types of nickel, ie. primarily Group One carcinogenic
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forms of nickel. In the case of houses, where highly elevated levels have been found in dust within the structure of the home, it is also important to note that given the age and construction techniques used in these homes the lack of proper sealing would allow for the movement of contaminated material from attics, ceilings, walls and other cavities within the house. Both wind and the effects created by the heating of a home would contribute to the transfer of materials under the correct conditions. I have spoken with Dr. Mark Richardson on this issue and we concur that without further investigation concerns would exist about the potential for effects on residents.

The History of the Refinery 45. Finally, in response to Exhibit D of the Conard Affidavit, it should be noted that this article (which describes the Refinery shortly after it was opened) pre-dates the construction of the tank house in 1922, the anodes furnaces in the period 1925-28, and the Dwight Lloyd sintering machines in 1928 and 1929. These would have been very large sources of contaminated emissions, the handling of which is not addressed.

46.

Furthermore, page 433 of the article seems to indicate that the gases from the original sintering process were not vented to the ESP but to a mechanical dust collection device, a far less efficient way of reducing contaminated emissions, even though Inco had first-hand knowledge of the technical and economic superiority of the ESP device.

47.

I make this affidavit in support of the plaintiffs motion for certification

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and for no improper purpose.

SWORN BEFORE ME at the City of Toronto, this 10th day of April, 2002

) ) ) ) )

THOMAS BURNETT, Ph.D., ) P. Eng. ) A commissioner etc. )

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