Court File No.

12023/01 Ontario SUPERIOR COURT OF JUSTICE B E T W E E N: 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 Proceeding under the Class Proceedings Act, 1992

AFFIDAVIT OF DR. BRUCE CONARD I, Bruce Conard, of the Town of Oakville in the Regional Municpality of Halto n, MAKE OATH AND SAY:

1.

I am Vice President, Environmental & Health Sciences for Inco Limited. I have

been employed in this position since 1995. My formal education includes a Ph.D and three years of post-doctoral work in physical chemistry. In 1973, I joined Incos Process Research

department as a senior research chemist and, until I assumed my current position, I worked in various positions in that department, eventually as Director of the department. In my prior positions, I had extensive experience in metallurgy, electrochemistry and metals processing. Attached as Exhibit A is a copy of my curriculum vitae. 2. My responsibilities in my current position include oversight of the scientific

aspects of environmental and health issues concerning Incos products and production facilities and the communities in which they exist. To that end, I have attended graduate level courses,

-2studied and read widely in the areas of industrial hygiene, epidemiology, biostatistics, environmental aqueous chemistry, toxicology and soil chemistry. I have published articles in peer reviewed journals and elsewhere in such areas as the toxicology and environmental effects of nickel and other metals. With regard to Incos Port Colborne facility, I have been actively involved in the study and assessment of the facility and the implications of its historical operations for the environment and human health in and around Port Colborne. I am very familiar with the numerous studies, reports and documents that have been produced relating to matters in Port Colborne, some of which are referred to and reproduced here and in other affidavits sworn in this matter. Accordingly, I have knowledge of the matters to which I depose. Where I have been advised of certain information provided in this affidavit, I believe such information to be true. 3. A summary of the contents of this affidavit is as follows: Incos Port Colborne facility was designed and constructed during World War I to help meet wartime demand for nickel. The facility operated as a nickel refinery from 1918 to 1984. Since 1984 other operations at the facility continued on a much smaller scale and today primarily consist of some cobalt and precious metal refining and warehousing of products from other Inco operations. [Section I] The vast majority of airborne emissions would have occurred in the first four decades of the plants operations. Emissions since the cessation of nickel refining have been negligible in comparison. [Section II] Site by site sampling is required to determine the present levels of nickel and other elements on individual pieces of property in Port Colborne. [Section III]

-3 In the Rodney Street area, which has been surrounded by industry for almost a century, measured soil metal levels have increased with depth unlike elsewhere in Port Colborne, suggesting infill as a possible source. Soil metal levels in the Rodney Street area are also highly site specific. There are multiple potential sources other than Inco for many of the metals found in the area, inc luding a large former steel plant and other local industries. [Section IV] Nickel in soil can take many different forms which display different chemical properties and potentials for toxicity. The ability of nickel-containing particulates deposited on particular sites many years ago to change chemical form depends on the rate and extent of various chemical reactions occurring over the years under local soil conditions. As a result the mixture of nickel forms currently present in the soil is site specific. [Section V] Disparate results obtained from various attempts to characterize the nickel oxide content of soil samples from different locations in Port Colborne confirm that nickel speciation is complex, variable and site specific. [Section VIA] Ambient air levels of nickel in Port Colborne are in line with levels elsewhere in Southern Ontario. The risk to residents of cancer from inhaled nickel in Port The plaintiffs

Colborne is extremely low and on par with other communities.

attempt to imply an association between nickel oxide and a significant cancer risk in Port Colborne is disingenuous in the extreme. [Section VIB] For decades, there has been awareness in the community of nickel emissions from Incos facility and the presence of nickel in the soil. The public airing of such concerns is not new. [Section VII]

-4 In 1999, Inco, the Ministry of Environment and the City of Port Colborne, with the cooperation of the Regional Department of Public Health, initiated a Community Based Risk Assessment (CBRA) process which is funded by Inco and estimated to cost over $5 million. Through the process, individual properties across Port Colborne will be assessed and, if necessary, appropriate remediation will be carried out. Assessment in the CBRA will be based on conservative principles of risk assessment, not legal standards of proof or liability. Appropriate remediation will be provided on a no-questions-asked basis. The CBRA will ensure that not only individual properties are approved and safe for development and use but also that Port Colborne as a whole is recognized as a healthy place to live, with all of its lands safe for productive use in the eyes of the government of Ontario and the Regional health authorities. [Section VIII] I. 4. Brief History of the Port Colborne Facility World War I led to a greatly increased demand for nickel, an important

component for weaponry. According to F.B. Howard-Whites Nickel: An Historical Review, fully four- fifths of the worlds supply of nickel went into armaments and production trebled in a decade. 5. Early in the war the Royal Ontario Nickel Commission was appointed to study the

nickel industry in Canada and Ontario. In 1917, it issued an extensive final report (excerpts from which are attached as Exhibit B). The Royal Commission observed that Canada had no nickel refining facilities at the outbreak of the war, despite mounting political agitation, dating from long prior to the war, for nickel producers to develop a domestic refining capacity in Ontario. This drive, which included subsidizing legislation and other governmental measures, had been

-5resisted by the nickel companies. The Royal Commission itself amplified the call for domestic nickel refineries which could supply the British Empire with its wartime nickel needs. The Commissions final report noted with satisfaction that after the public announcement of the appointment of the Commission, the International Nickel Company (now Inco) announced that it would build a refinery in Port Colborne. Construction began in late 1916, and the Port Colborne refinery went into operation in 1918. 6. The Port Colborne facility is located in the southeastern corner of Port Colborne

near where the Welland Canal meets Lake Erie. Attached as Exhibit C are maps of the local area showing the location of the refinery, the geographical boundaries of the purported class definition, the Rodney Street area (discussed below) and various landmarks (including the site of the former Canadian Furnace / Algoma Steel plant discussed below). 7. Over its history, the Port Colborne facility has undergone a number of process,

operational, technological and equipment changes. Early operations used the Orford process to separate a raw copper-nickel matte into its nickel and copper components. The nickel portion was further processed by, among other things, calcining furnaces for roasting, mechanical separation, grinding and crushing, and sintering. In the 1930s, the Orford process was

transferred elsewhere, and the Port Colborne facility focused on processing the separated nickel portion of the matte. Copper processing ceased around this time. 8. In the mid-1920s, electro-refining operations were introduced which, over time,

became the primary means of producing refined nickel. Other operations were also carried out at the facility, including the electro-refining of cobalt and precious metal refining. At the height of its operations in the middle of the century, the facility employed close to 3,000 people and was one of the largest employers i Port Colborne. Many members of the proposed class are n undoubtedly former employees of Inco.

-69. Production of electrolytic nickel declined in the 1970s and ceased in 1984. Over

the years, about 7 billion pounds of electrolytic nickel were produced in Port Colborne. Other operations continued at the facility after 1984 but on a significantly smaller scale, and today primarily consist of some cobalt and precious metal refining and warehousing products from other Inco operations. About 190 people are currently employed at the facility. 10. I have reviewed the affidavit of Thomas Burnett, a former employee of Inco, and

showed it to other current and former employees of Inco who have knowledge of the matters he asserts or assumes. There are numerous inaccuracies, distortions and gross oversimplifications in Burnetts account of the Port Colborne facility and its operations. While I will not undertake to correct them all here, I will clarify the following with regard to the facilitys operations: (a) Burnett states that the Refinery, however, appears to have operated from 1918 to 1936 without any major stack and the effects of early emissions from Inco could have been reduced had an adequate stack been installed when the facility was first constructed. Burnett does not indicate where he gets his information, but it is inaccurate. Large process emission stacks were part of the refinery from its opening in 1918. In fact, a contemporary account describing the refinery then under construction, excerpted in the 1917 Royal Commission report, observed: The two main refinery stacks of radial brick construction will be amongst the largest yet built, being 350 feet high and 12 feet diameter at the top, the base of each of these stacks being of massive concrete constructio n 40 feet by 40 feet. A 1919 article in the Engineering and Mining Journal discussing the facility (a copy of which is attached as Exhibit D), describes these 350-foot stacks and shows them (as well a 175 foot boiler chimney) in a panoramic photograph of the facility. The twin 350-foot stacks were replaced in the mid-1930s by an even larger 500-foot emission stack, which was used until 1985 and eventually torn down in 1995. (b) Burnett states he made periodic visits to the Port Colborne facility in years when he had research and development responsibilities with the company. However,

-7his description of the three Research Stations that were housed at the facility is inaccurate and misleading. I am advised by Dave Reed, currently the Supervisor, Environmental Control at Incos Port Colborne facility, who used to work at the Research Stations as Test Engineer in the Technical Services Department, that the Research Stations were completely separate from nickel production operations of the refinery. The three Research Stations had separate entrances, occupied a relatively small portion of the site and were managed separately from refinery operations. The process research work carried out at the Research Stations had no ongoing connection to production activities elsewhere at the Port Colborne facility. Rather, the Research Stations served to pilot processes for Incos various operations worldwide. The first Research Station was primarily used to develop a special process for production of ultra pure nickel for operations in Sudbury. The second research station was primarily used to research processes for Incos Indonesian operations and later to design methods to reduce sulphur dioxide emissions particular to Incos Copper Cliff plant. The third Research Station was devoted to hydrometallurgical research and later became the precious metal refinery unit. (c) I am advised by Dave Reed that visits to the Research Stations would have offered Burnett no special insight into production operations at the Port Colborne facility. I am also advised by Dave Reed, who did work in the production

operations at the Port Colborne facility during this time, that he has no recollection of any visits, let alone any detailed inspections, by Burnett at that part of the facility. (d) In later years of his career with Inco, Burnett became a Director within the Public and Government Affairs corporate office. This position would have offered little opportunity to observe and understand the operations of the Port Colborne facility as it primarily consisted of managing relationships with the federal government. II. 11. Emissions Process stacks disperse airborne emissions over a wide area to avoid concentrated

effects in the immediate vicinity of a plant. Stack emissions largely dissipate in the direction of

-8the prevailing winds. As noted, the Port Colborne refinery began operations with some of the largest stacks ever used and in the mid-1930s replaced these stacks with an even larger stack. 12. Industrial facilities also are subject to fugitive airborne emissions. These are

essentially the unintended escape of dust from a facility, through doors, windows and other openings. Fugitive airborne emissions are generally small in overall quantity by comparison to process stack emissions. Because they originate much closer to the ground and typically at much less initial velocity, fugitive emissions tend to travel a very short distance and their particulate components settle in the immediate vicinity of the plant. In the case of the Port Colborne facility, fugitive emissions would have settled largely on Incos property. Fugitive emissions from the Port Colborne facility would probably have been much higher in the earlier years of the plants operation before modern occupational standards for workplace dust levels were established. 13. The quantity of airborne particulate emissions from a plant can be estimated using

two basic factors: (i) the emission factor, which is the proportion of material associated with a given process that is lost through emissio ns; and (ii) the volume of production. Thomas Burnett, in his affidavit, exclusively discusses emissions controls (which affect the emission factor) but ignores production volumes completely, although the latter (like the former) would have varied widely over the years. The peak period of electrolytic nickel production at the Port Colborne facility was 1940-1960. Production in 1969 was, for example, less than half of production in 1959. 14. While there are no exact measurements available of total airborne emissions from

the facility, I agree with the indication in the 1980 MOE report attached to Allen Baldwins affidavit as Exhibit D that the vast majority (at least 90-95%) of airborne emissions from the Port

-9Colborne facility were likely associated with operations prior to 1960. Later years saw both overall decreases in production volumes and advances in emission control technology and thus substantially lower emissions. 15. The makeup of stack emissions would also have varied over the years with

changes in processes, operations and technology. In general, historical emissions from the facility would have been highest in nickel compounds and less so in copper and cobalt compounds. Lower levels of other elements also might have been present in plant emissions, especially in the earlier years of operation. However, no elements other than nickel, copper, cobalt and arsenic have been observed in the Port Colborne area in a distributional pattern that would suggest an Inco origin. 16. Emissions from current operations at the Port Colborne facility are negligible in

comparison to what they once were. In this respect as well, Thomas Burnetts affidavit is misleading. Burnett attaches to his affidavit year 2000 information from the National Pollutant Release (not Registry) Inventory, purportedly to show that [a]ll the Contaminants of Concern are still being emitted from the Refinery. This obscures that virtually all of the elements referred to in the inventory are in fact disposed of, not as airborne emissions, but as landfill on Incos property, in accordance with applicable environmental standards and express approvals of the MOE. In comparison to airborne emissions while the nickel refinery was in operation, current airborne emissions from the plant are negligible and have been since 1984. Airborne emissions since 1984 would not have measurably impacted the chemical composition of the surrounding lands.

- 10 III. 17. Soil Metal Measurements in Port Colborne Testing around the general Port Colborne area has shown elevated levels of nickel

in the surface soils. Nickel generally seems to be spread in a northeastern direction from the Inco facility, and levels tend to decrease with increasing distance from the facility, although not uniformly. Inco has acknowledged that historic airborne emissions from its facility

predominantly prior to 1960 are the primary source of the elevated levels of nickel in the surface soils. (The situation in the Rodney Street neighbourhood is different and unique, as discussed below.) Because of the prevailing wind direction and the location of the facility, most of the area with elevated levels of nickel lies outside the residential portion of Port Colborne (to the northeast of the facility). Testing has also shown lesser elevation in le vels of copper, cobalt and arsenic in surface soils, generally decreasing with distance from the Inco facility. 18. Although a rough trend is discernible with respect to several elements, it is

impossible to ascertain the actual level of any of these substances on any particular piece of property without conducting soil sampling of that piece of property. The bulk of the deposition of airborne contaminants occurred 40 to 80 years ago. The current situation on any piece of property is unique due to the effects of changing use, soil conditions, erosion, excavation, wind breaks, tree cover, landscaping, natural chemical processes and other factors. 19. In 1999, the MOE undertook a study designed to augment earlier sampling of

these substances in Port Colborne area surface soils. A copy of the study is attached as Exhibit E. The study produced computer-generated and data-smoothed contour maps based on the

sampling results, illustrating the emergent patterns of the elevated levels of the substances in the surface soils, but warned users expressly (p. 10): These maps are statistical approximations of the spatial distribution of the different contaminants. Soil concentrations are only known with

- 11 certainty at those sites for which soil was actually sampled and chemically analyzed. . . . Therefore these maps should only be used as an interpretive tool to provide information on approximate areas and/or patterns of contamination and cannot be used to infer contaminant concentrations at locations not directly sampled. 20. The sampling results and corresponding mapping approximations also differ

greatly by substance. For example, the mapping software using the data points collected for the study approximated an area of 28.6 square kilometers in which nickel levels exceed the MOEs Table A generic guideline for nickel, an area of 0.8 square kilometers in which cobalt levels exceed the Table A generic guideline for cobalt, an area 0.2 square kilometers in which copper levels exceed the Table A generic guideline for copper and no area at all in which arsenic levels exceed the Table A generic guideline for arsenic. 21. Thus, the division of all Port Colborne into a Table A Area and a Table F

Area set out in paragraphs 54-61 of Wolfgang Kaufmanns affidavit (sworn January 16, 2002) is falsely simplistic in at least two major respects. First, the plaintiff complains of the presence of contaminants from six different metal groups lead and zinc in addition to nickel, copper, cobalt and arsenic. Each substance displays its own highly unique pattern of distribution, as the different mappings for nickel, copper and cobalt show. In other words, there can be no such thing as a single Table A Area and single Table F Area for all six metals. Each substance is distributed differently and idiosyncratically. For example, the MOE soil study reports that for each sampling site, the soil concentrations for As [arsenic] . . . and Pb [lead] were all within the range expected for soil background. And for zinc, the study reports that there were various exceedances but that they were found in a random distribution giving little reason to suspect these elevated soil concentrations to be related to emissions from the INCO smelter.

- 12 22. Second, to say, as Kaufmann does, that there are . . . large tracts of land in Port

Colborne where contamination levels are above Ontario MOE Table F guidelines (i.e. Ontario background levels) obscures that, even with respect to any single substance, one cannot ascertain what those tracts of land are without actual soil sampling and analysis of each property. That is, Kaufmann ignores the MOE studys warning that one cannot determine the level of any substance in a particular property from the level observed on another property. 23. A further complication, ignored in the plaintiffs materials, is that there are

sources, other than Inco, that contributed to the presence of metal- containing particulate in Port Colborne area soils. In general, the Port Colborne and Welland Canal region has been and continues to be home to various industrial works, including other metal processing operations, various medium to light industries and activities associated with shipping traffic through the canal. For example, from 1917 to 1977, the Canadian Furnace Company (and later Algoma Steel) operated a large iron smelter / steel plant only several hundred meters to the southwest i.e. upwind of Incos facility (see map at Exhibit C). Historic emissions from that operation would have been a likely source of various contaminants, including arsenic, in area surface soils. A 1984 report of the U.S. Environmental Protection Agency (a copy of which is attached as Exhibit F) describes how nickel emissions are typical by-products of activities at many ordinary, non-nickel producing industries, such as coal and oil combustion, cement production, sewage incineration, coke ovens and coal conversion. 24. In addition, elevated levels of lead in residential-area soils is often found due to

the long-time use of leaded gasoline, lead-based paints and lead-based pesticides and the improper disposal of batteries. The MOE found in its Rodney Street study, discussed below, that levels of lead found on various Rodney Street area properties are randomly scattered (i.e. no

- 13 consistent spatial relationship to the Inco facility) in a way that is typical of older urban communities in Ontario and indicative that local sources, such as peeling paint and use of leadbased products, are the predominant cause of lead contamination. The MOE concluded that such sources were far more significant contributors to soil lead levels and that any contribution from Inco cannot be measured above the normal urban lead loading. IV. 25. The Rodney Street Area (the East Side Community) The Rodney Street area is a neighbour hood sandwiched between Incos facility on

the east side and the site of the old Canadian Furnace / Algoma facility and the Welland Canal on the west and southwest side (see map at Exhibit C). It is an area that has been surrounded by heavy industry for maybe a century or more. The area is near Lake Erie and the ground is comprised of a substantial amount of fill, including slag from various industrial operations, as well as peat and clay. Soil conditions are very different from elsewhere in Port Colborne. 26. The area became a focus of attention in mid-2000 when soil samples taken by the

MOE from a single property showed nickel levels of about 14,000 mg/kg (parts per million or ppm). This was higher than the previously highest observed nickel level found in repeated soil samples taken over many years across the Port Colborne area 9,750 ppm. The 9,750 ppm result had been used in a 1997 MOE health study (attached as Exhibit 1 to the previously filed October 29, 2001, affidavit of Joseph Starkman), which concluded that no adverse health effects are anticipated to result from exposure to nickel at this level (or from copper or cobalt) in Port Colborne soils. 27. The newer sample measurement led the MOE to conduct an extensive sampling

campaign in the Rodney Street area in spring 2001. The results of the soil sampling and an accompanying health risk assessment were published in a revised report released by the MOE in

- 14 October 2001 (and found at the previously filed Joint Compendium of the parties at tab 12). While the soil results showed an average soil-nickel concentration in the Rodney Street area of about 2,500 ppm, the single highest concentration in one sample was 17,000 ppm. Unlike elsewhere in Port Colborne, the higher levels of nickel were found at depth along with significant amounts of slag and other non-native landfill. The study also measured the presence of other metals including arsenic, copper, cobalt, lead and zinc finding scattered areas of elevated levels of some of these substances but to a much lesser extent than nickel. 28. Overall, the sampling study found (p. 19) that soil contamination in the Rodney

Street community, although extensive for some elements, tends to be patchy. Properties with much lower soil contamination levels were often encountered between properties with much higher concentrations. Conversely, occasionally single properties with significantly elevated concentrations of some elements were surrounded by properties with much lower contaminant levels. 29. The report re commended that 25 properties, in which nickel levels of greater than

8,000 ppm were found, be remediated. The MOE issued a draft order to Inco to that effect. Inco immediately volunteered to remediate the 25 properties by removing and replacing the surface soil with fresh imported soil, despite strongly disagreeing with the conclusions of the report as to both the source of the contamination and the probability of any health risk (for reasons detailed in Incos response to the MOE dated November 30, 2001, and the appraisal of Dr. George Becking dated August 10, 2001, copies of which are attached as Exhibit G). Remediation of five properties has already taken place. Remediation of other properties has been consistently blocked by plaintiffs counsel who h been personally retained by various property owners and as residents.

- 15 30. In addition, Transport Canada recently commissioned environmental studies of

tracts of federally owned lands adjoining the Rodney Street area to the west and the southwest. These lands, along the east bank of the Welland Canal, include the sites of the old Canadian Furnace plant, a former CN railyard to the north and various other industrial activities such as scrap metal operations and the dismantling of large ships. A copy of the latest published report dealing with lands immediately to the west of the Rodney Street area is attached as Exhibit H. (A similar report dealing with adjoining lands to the southwest has not been attached.) Among other things, the reports describe the highly variable soil conditions observed from site to site and the significance presence of non- native infill in the area. The reports also chronicle many of the different historical sources of local contamination, including Canadian Furnace and other local industries. V. 31. The Forms of Nickel in Soil To understand potential behaviour of metals in soils or in any other medium, it is

essential to identify the precise chemical form the metals take in the soil since each chemical form has its own unique way of being able to react. Even compounds of the same metal have a large range of chemical properties including such things as solubilities, molecular size, and bonding strengths. For example, nickel sulfate hexahydrate is a solid compound that dissolves readily in water to release nickel ions and sulfate ions. The high temperature form of nickel oxide, on the other hand, is relatively insoluble in water or even acidic solutions. While it may dissolve given enough time, nickel oxide is very slow to dissolve under normal environmental conditions. Even within the gastro- intestinal tract of mammals, including humans, experimental results show that nickel oxide is very slow to dissolve. Nickel metal does not dissolve at all.

- 16 Instead, nickel metal must undergo corrosion, which is a chemical oxidation reaction. conditions for such reactions are not present, then nickel metal will remain in its metallic form. 32. Typically, soil samples are analyzed first for their total amounts of elements. If

Most of the soils in Port Colborne that have been tested have been subjected to this kind of analysis so that when a soil is said to contain 1000 parts per million of nickel, it is meant that the total amount of nickel in all forms is 1000 parts per million of the soil mass. Such an analysis is not able to say how much of that nickel is in the form of nickel sulfate hexahydrate, or of nickel metal, or of nickel oxide, or of the hundreds of other possible nickel-containing materials that could be present in the soil. 33. The determination of the precise forms of a metal in soils is an important part of

considering the hazards that these forms have to humans or to any other organism in the environment. Each form will have a unique way of interacting with membranes to enter an organism. If an element like nickel is not able to enter an organism, then it is not able to exert any toxicity to that organism. 34. It is the present content and form of metals in the soil that are of relevance in

considering possible health and environmental impacts at a given location. The forms of nickel originally emitted as stack or fugitive particulates from industrial activities would have fallen out of the air and settled onto the top surface of the soil. Some small degree of movement of the deposited particulates could have occurred through the interstices between natural soil particles, but most of the deposited material from air would likely be, in the absence of major physical relocation of soils, in the top several inches of the soil. 35. Inco has consulted with Dr. Rufus Chaney, a research agronomist with the United

States Department of Agriculture and one of the worlds foremost authorities on the behaviour

- 17 and toxicity of metals in soil. Dr. Chaney has advised that under normal surface soil conditions (rainfall, snowfall, availability of oxygen) the deposited particles would not remain inert, but would react with the water phase and the adjacent soil minerals to form new compounds that would have a different chemistry than the originally deposited particles. Such reactions take time to complete, from minutes in some cases to years in others. What a chemist will find in any specific soil will depend on the original deposited particles, on the length of time they have had to react and on the chemical na ture of the soil itself. 36. A soil investigation in the year 2001, therefore, will be an integration of all of the

possible reactions that could have occurred since a particle was deposited in the soil. A chemist would expect to find a complex set of produc ts of such reactions, particularly if decades had elapsed between the time the particles landed on the soil and the time the chemist was looking at it. 37. Particulate emissions from the different processes and operations at the Port

Colborne facility (which changed and evolved over time) would have likely included different mixtures of multiple nickel forms in particular, various mixtures of nickel subsulfide, nickel carbonates, nickel hydroxides, nickel oxide, nickel sulfate with a minor amount of nickel metal. 38. Many different reactions would have taken place to varying extents to change the

original forms of the nickel deposited on the soils. For example, nickel sulfates are highly soluble and would have been quickly dissolved in soil pore water. This water, however, would not have transported nickel far because of the large number of natural soil materials that like to bind nickel ions. It is therefore likely, that nickel ions released from nickel sulfates would quickly be grabbed by materials such as iron oxides, manganese oxides, and organic matter

- 18 which all occur to varying degrees in soils. Any original nickel sulfate would have probably disappeared as such within days or weeks of being deposited. 39. Nickel subsulfide is itself somewhat less soluble in water but does oxidize readily

at normal temperatures to form a sulfate skin. This skin is highly soluble and is easily removed from the nickel subsulfide surface, thereby making the surface available for more oxidation. This process would operate continuously until all of the nickel subsulfide had been converted to nickel ions which would ultimately have the same fate as the nickel ions that had come from direct dissolution of nickel sulfate particles. Any original nickel subsulfide would probably have disappeared as such within weeks or months of being deposited. 40. Nickel oxide would be slowest to dissolve. However, given the decades where

these particles were available for reaction, it is likely that a significant number reacted completely or reacted to such an extent that their size and mass would have been significantly reduced today from what it was when originally deposited. Like the other compounds, when dissolved, nickel oxide releases nickel ions and these are rapidly captured and bound to natural components that are present in the soil. 41. Nickel carbonates and nickel hydroxides would be expected to exhibit behaviour

somewhere between that of nickel sulfate and nickel oxide. In time, these materials would likely also have completed reacted and the resulting nickel ions captured and tightly bound by the natural soil components. 42. Nickel metal would behave in a manner somewhat similar to nickel oxide because

the first step in nickel metal reactivity would be oxidation to form a nickel oxide skin on each particle of metal. This skin would react like nickel oxide and would continuously be removed,

- 19 thereby allowing more nickel to be exposed and oxidized. Given time, the nickel metal particles would also disappear and the nickel ions released would be bound to soil components. 43. Thus all forms of nickel initially deposited in soils could be, given enough time,

completely reacted and the nickel, once released from these reactions, quickly and tightly bound to numerous soil components in a multitude of chemical forms. Therefore, the presence of nickel in soils, while still consisting of the total amount that was originally deposited, is likely now to be in many different chemical forms compared to when originally deposited. 44. As a result, the mixture of nickel forms in the soil is inevitably site specific, as

emphasized by the Agency for Toxic Substances and Disease Registry, whose work is referenced and relied upon in the affidavit of Dr. Mark Richardson, in its Toxicological Profile for Nickel (a copy of which is attached as Exhibit I). The Profile states (at p. 172 and p. 181): The speciation and physicochemical state of nickel is important in considering its behavior in the environment and availability to biota. For example, the nickel incorporated in so me mineral lattices may be inert and have no ecological significance. Most analytical methods for nickel do not distinguish the form of nickel; the total amount of nickel is reported, but the nature of the nickel compounds and whether they are adsorbed to other material is not known. This information, which is critical in

determining nickels lability and availability, is site specific. Therefore, it is impossible to predict nickels environmental behavior on a general basis. *** Nickel is strongly adsorbed by soil, although to a lesser degree than lead, copper, and zinc. There are many adsorbing species in soil, and many factors affect the extent to which nickel is adsorbed, so the adsorption of nickel by soil is site specific. Soil properties such as texture, bulk density,

- 20 pH, organic matter, the type and amount of clay minerals, and certain hydroxides influence the retention and release of metals by soil. VI. 45. The Nickel Oxide Fallacies There are two major fallacies concerning nickel oxide that plaintiffs counsel has

spread publicly and which are reiterated in the plaintiffs materials. The first is the claim that testing has shown nickel oxide to be the predominant species of nickel found in Port Colborne soils. The second is the suggestion that nickel oxide in the soil represents a particular health risk to residents. A. 46. The Soil Chemistry Fallacy The examination of the precise chemical form (termed speciation) of an

element like nickel in soils can be carried out by means of a number of techniques. Each technique has its advantages and its disadvantages. Differences in results will occur because of the nature of the technique being used. 47. Differences in soils and conditions from place to place will mean that the ultimate

state of nickel is going to be different due to the influence of the minerals and organic matter present in each local soil and the varying kinds and rates of chemical reactions that would have occurred over the many decades in which nickel was present. 48. Thomas Burnett states in his affidavit, and is echoed by Wolfgang Kaufmann in

his affidavit, that [t]esting by both the Ontario government and Inco has indicated that most, if not all the nickel in Port Colborne is likely nickel oxide. This is false, as explained below. 49. The MOE took samples of soils from a wide area of Port Colborne during their

sampling campaigns of 1999 and 2000. Only total nickel concentrations were obtained from

- 21 these samples that is, the MOE did not obtain information about the nickel speciatio n for those samples. 50. As mentioned, during the sampling of the Rodney Street community during late

2000, the MOE found some very high total nickel concentrations and these concentrations were found generally to increase with depth. Because the total nickel concentrations were much higher than the MOE had found elsewhere in Port Colborne, the MOE sent selected samples (those with the highest nickel concentrations found at depth) for scanning electron microscopy (SEM). Inco also requested similar samples from the Ministry for similar SEM investigations and x-ray diffraction studies by the Inco laboratories. A January 15, 2001 report from the Inco labs (a copy of which is attached as Exhibit J) contains information on the four samples analyzed. These samples generally showed nickel to be in bunsenite (nickel oxide) and metallic nickel. Specifically, nickel and nickel oxide were generally found to be closely associated within the same particle. The samples consisted primarily of minerals such as quartz, feldspar and carbonates. About 30-40% of the sample was estimated to be man- made material, primarily in the forms of iron oxides and slag components. 51. Inco does not believe these samples represent material that was emitted from the

refinery because it is located at depth, is present with high amounts of iron oxide which would not have been emitted by the refinery in any significant amounts at any time in its operations, and appears to be associated with a foreign type of material characteristic of slag-type fill different from slag generated by Incos historical use of the Orford process. Inco believes the material found at depth in the Rodney Street area was likely placed to raise extensive sections of low- lying land and could have been placed there before Inco commissioned its refinery. The MOE, on the other hand, believes this material came from Inco. Whatever the source, it is clear

- 22 that this material at depth on Rodney Street consists of nickel oxide and nickel metal as the predominant forms of nickel. 52. However, testing elsewhere in Port Colborne indicates that neither the material

found at depth on Rodney Street nor its nickel content is representative of surface soil in the wider Port Colborne community. 53. The plantiffs materials indicate that two Port Colborne soil samples were

examined for the plaintiff by Hesterberg and Pandya by Extended X -ray Absorption Fine Structure spectroscopy. The plaintiffs materials, however, do not identify from where in Port Colborne those samples were collected. Inco was informed by the plantiffs counsel in an email dated August 2, 2001 (a copy of which is attached as Exhibit K that these samples labeled ) back and front were in fact obtained from a single property in the Rodney Street area itself the property lo cated at 91 Rodney Street. 54. The predominant form of nickel found by these investigators was nickel oxide.

They stated that this oxide was more disordered than the standard nickel oxide and they attributed this as possibly due to the influence of an iron impurity. This finding is in agreement with Incos own analyses of other samples collected in the Rodney Street area (as discussed above). 55. In contrast, samples from other areas in Port Colborne do not show the same

chemistry as those samples from Rodney Street. For example, two samples were taken in 2000 as part of the Community Based Risk Assessment of soil in Port Colborne being done by Jacques Whitford Environmental Ltd. (JWEL). JWEL took a surface sample, labeled SS-25, from a field adjacent to Reuter Road and directly east of the Inco stack. The soil matrix in this field is an organic muck and SS-25 contained a total nickel concentration of 3,370 ppm nickel. Another

- 23 surface soil was taken from the corner of Incos site at the intersection of Reuter Road and Durham Street. This sample, labeled SS-33, came from a low-organic mineral soil. This soil had not been used for farming since 1918. Both these samples were submitted to Enpar

Technologies in Guelph, Ontario, for nickel speciation studies. 56. Enpars first report (dated September 20, 2000, a copy of which is attached as

Exhibit L) on SS-25 and SS-33 used SEM analysis in a secondary electron imaging mode. This mode gives sharp images of soil components, but detection of high atomic weight elements such as nickel is sacrificed. With this mode nickel was seen as being present, but was associated with all soil components in an amorphous (i.e. non-crystalline) manner. Crystalline compounds are compounds that have a well-ordered and periodic lattice of atoms. Amorphous compounds are those that do not have well-defined lattice structure. Nickel oxide is a crystalline compound. No discrete particles enriched in nickel, such as nickel oxide, were observed. Enpar concluded that likely the original nickel-containing particles that were deposited had been weathered and the nickel had been adsorbed onto natural organic and inorganic soil components. 57. In order to determine if any nickel oxide could be observed, JWEL asked Enpar to

switch to SEM operated in a back scatter electron imaging mode. This mode, while not giving as sharp images as the former mode, improves detection of nickel. The report on the same samples SS-25 and SS-33 was issued by Enpar on April 15, 2001 (a copy of which is attached as Exhibit M). During this mode of operation, Enpar examined a large number of particles with the scanning electron microscope. Some nickel oxide particles were observed, namely 13 particles in sample SS-25 and 16 particles in SS-33. Generally these particles were in the size range of 25 micrometers diameter. Based on these observations, and using known densities of soil and nickel oxide, Enpar calculated the amount of nickel oxide relative to the total amount of the soil

- 24 specifically examined. The result was that nickel oxide could explain 100 ppm nickel in SS-25 and 90 ppm nickel in SS-33. Since the total nickel in these samples was 3,370 ppm nickel and 8,280 ppm nickel, respectively, nickel oxide accounts for less than 3% of the nickel in SS-25 and about 1% of the nickel in SS-33. This finding means that over 97% of the nickel contained in either sample is present in amorphous form. 58. It should be pointed out that the email comment of Dave McLaughlin of the

MOE, relied on in the Kaufmann affidavit, was based on the Enpar testing and misunderstands these results. (The email was sent before the final report was prepared.) While nickel oxide was the only form of nickel that was crystalline and specifically identified, it was not safe to conclude that the vast majority, if not all, of the Ni in the total metal analysis is nickel oxide. To the contrary, the Enpar testing showed nickel oxide accounted for only 1-3% of total nickel in the samples with various amorphous forms comprising the rest. 59. Portions of the samples SS-25 and SS-33 were supplied by JWEL to Lakefield

Research for analysis by a different technique. Lakefield concluded that nickel-rich particles presumably nickel metal and/or nickel oxide comprised the bulk of the nickel in the samples. These greatly differing results demonstrate not only that different answers to speciation are obtained when examining different soil samples but that different answers are often the result of examining the same samples using different methods. Accordingly, JWEL has informed Inco that in the CBRA process a variety of speciation techniques are being used and weighed to arrive at conclusions with regard to speciation of individual soil samples 60. It should be noted that in both samples Lakefield found that the mass of nickel-

rich particles observed was virtually entirely at greater than 10 micrometers size. This finding is

- 25 important for human health risk assessment because such particles, if airborne, will not penetrate into the alveolar region of the lungs. 61. A completely different approach for speciation is X-ray Absorption Fluorescence

Spectroscopy (XAFS). Argonne National Laboratory in the U.S. has been asked to examine SS25 and SS-33 using this technique. In addition, Professor Donald Sparks at the University of Delaware has been asked to examine these and other samples using a variation of this technique. 62. The Argonne National Laboratory work was conducted under Ms. Shelly Kelly.

Her preliminary draft report was received by email in November 2001. Argonne concludes that: there are significant differences between the amount of material that could possibly be identified as nickel oxide in samples SS-25 and SS-33. The report states: The number of near neighboring nickel atoms is 12 for crystalline nickel oxide but was found to be significantly lessfor the soil samples. This decrease indicates a mixture of nickel oxide and nickel adsorbed to another mineral and the nickel is not homogeneously distributed in [sample SS-25]This is a dramatic change in the distribution of nickel for this sample [and] indicates that caution should be taken when interpreting these results. 63. A group at the University of Delaware, under the leadership of Professor Donald

Sparks, is in the process of analyzing a variety of samples collected from soils around the city. Their findings to date are given in A Progress Report on Spectroscopic Analyses of Port Colborne (Canada) Soil Samples (a copy of which is attached as Exhibit N). These researchers used both bulk and micro-focused x -ray absorption spectroscopy. For soils located close to the refinery site, they report that nickel oxide is the predominant form of nickel in the soil. In contrast, for a sample located about 3 kilometres to the northeast of the refinery (the direction of

- 26 the prevailing wind), Professor Sparks group found nickel primarily in a disordered nickel hydroxide state and no evidence of nickel oxide. 64. Another approach used by scientists to determine speciation of metals in soils is

sequential extraction. This approach utilizes differences in the chemical properties of metal compounds. Because of its properties, nickel oxide would be expected to remain in the residual portion of nickel following earlier extractions of other forms. Such a method was employed by Enpar Technologies Inc. on samples SS-33 and SS-26 (this sample was taken close to SS-25). SS-26 had about 40% of the total nickel present as residual. SS-33 gave about 25% of the total nickel in the residual. The major amount of nickel in SS-33 was found to be adsorbed to ironmanganese oxyhydroxides. 65. The disparate results from Rodney Street and elsewhere demonstrate that the

nickel situation on any particular piece of property depends upon the unique set of environmental and chemical circumstances for that piece of property over the last half-century or more. In sum, nickel speciation is complex, variable and site specific. B. 66. The Health Fallacy The second nickel oxide fallacy propounded by plaintiffs counsel relates to its

health effects. The report of Dr. George Becking (attached to his affidavit) discusses how even attempting to establish that soil conditions are the actual cause for any given person of any of the various diseases and health conditions listed by the plaintiff is a complex individualized process. I confine my comments here to the misinformation about the general risks of nickel oxide being spread by plaintiffs counsel through press statements and repeated in the class certification materials.

- 27 67. In particular, the attempt in Thomas Burnetts affidavit to imply an association

between nickel oxide and a significant cancer risk in Port Colborne is disingenuous in the extreme. Certain nickel compounds have been associated with particular kinds of nasal and lung cancers but only under conditions of prolonged exposure and only through inhalation and only at extremely high workplace air concentrations. In fact, elevated rates of nasal and lung cancer have only been found among some nickel refinery workers who, prior to the implementation of modern workplace air quality standards, continuously breathed in high levels of refinery dust with nickel concentrations on the order of one million times greater than that in the ambient air in Port Colborne. This is pointed out in the very 1994 Health Canada report that Burnett attaches to his affidavit ostensibly to support his generalizations. Since that report, further studies have shed more light on the carcinogenic potency of nickel oxide, for which the report made conservative assumptions due to a lack of information. For example, a comprehensive inhalation study involving rats and mice showed that nickel oxide is probably only 1/10 as potent a carcinogen as is nickel subsulfide which was the major component of nickel refinery dust associated with increased nasal and lung cancer rates. Since the 1994 Health Canada report, there have been more recent reviews of the scientific literature on nickel carcinogenicity which incorporate the results of later research. Copies of two comprehensive reviews are attached as Exhibit O. 68. In its October 2001 report, the MOE, using extremely cautious assumptions e.g.

all nickel in the air is nickel oxide and nickel oxide is as potent a carcinogen as refinery dust (despite recent evidence that nickel oxide is about ten times less potent than nickel subsulphide) has estimated that the risk over a lifetime of contracting cancer from inhaled nickel in Port Colborne is no more than 1 in 100,000. In a town of 18,000 people, this level of risk means that

- 28 it is unlikely that even one person living in Port Colborne will get cancer as a result of inhaling nickel oxide in the ambient air. 69. Furthermore, as the MOE notes in its October 2001 report, ambient air levels of

nickel in Port Colborne have been steadily declining . . . with a corresponding lowered inhalation cancer risk. The study itself conservatively relied on ambient air nickel levels measured 7-10 years ago, thus overstating the current and future risk. The most recent

measurement of nickel in the ambient air (collected in the Rodney Street area in 2001) showed current air nickel levels only about one-third of the decade-old numbers a level which is almost 200 times lower than MOE 24-hour air standard guidelines and in line with levels in other areas across Southern Ontario. Using realistic assumptions, the actual risk of contracting cancer from inhaled nickel in the ambient air in Port Colborne is likely on the order of 1 in a million or less. Indeed, when the MOE studied actual cancer incidence rates in Port Colborne as part of its 1997 report, it found that the pattern of cancer incidence rates in Port Colborne does not indicate an excess population risk due to persistent and pervasive environmental exposures. 70. Nickel oxide, or any other nickel compound for that matter, has not been found to

cause cancer through ingestion, the main route of exposure from a soil-based as opposed to an air-based contaminant. N ickel oxide, being relatively insoluble, is actually far less bioavailable through ingestion than other forms of nickel. Because it passes through the body with only minimal absorption, nickel oxide is one of the safest forms of nickel to ingest. VII. 71. public one. Community Knowledge of the Emissions Issue The issue of emissions from Incos Port Colborne facility is an old and very Since at least 1929, farmers near the refinery have complained about Incos

- 29 emissions. Members of the Augustine family, whose ongoing action against Inco is referred to in Kaufmanns affidavit, alleged in 1935 that their oats had been damaged by Inco emissions. 72. Complaints about Incos stack appeared in the press as early as 1938, and elevated

levels of nickel in area soils have been reported for at least 40 years. It is true that complaints of plant injury have steadily declined since 1960 as production levels decreased and emission control measures improved. By 1980, the MOE reported significant reduction in reports of vegetation damage. 73. In 1962, ratepayers in Humberstone Township presented Township Council with

a brief and asked that it be forwarded to the Department of Health, Mines and Agriculture. The brief noted that the Department of Mines had reports of investigations in the area conducted in 1959, 1960 and 1961. It asked, among other things, (a) that fumes be passed through

precipitators which were reported to be effective against emissions and (b) that legislation to enable farmers to recover losses be expanded to include damage from soluble chemical compounds causing damage to crops and livestock. The Township Council passed a resolution supporting the brief and forwarded it to the Departments of Health, Agriculture and Mines, as well as to Mr. Ellis P. Morningstar, the local MPP. Councils resolution was reported in the local press the following day. 74. Since the early 1970s, the MOE has openly and regularly taken air and soil

samples in the vicinity of the facility, typically on the property of, and with the permission of, local landowners. 75. Health concerns were significant enough that in 1981 the federal government

commissioned a general health study in Port Colborne (a copy of which is attached as Exhibit P). Among other things, the study recognized that long-term inhalation of extremely high doses

- 30 of nickel refinery dust had been associated with nasal and respiratory cancers in refinery workers but that the oral toxicity of nickel is very low. As part of the study, in-person health surveys were attempted at 1,000 Port Colborne homes and over 300 residents participated in the survey. The authors concluded that the residents of Port Colborne are generally healthy with no illnesses reaching abnormal levels. 76. Public expressions of concern about Inco emissions nonetheless continued. This

led the MOE to undertake its 1997 health study. As part of that study, the MOE analyzed population health data in Port Colborne and likewise concluded that there were no adverse health effects existing from environmental exposures in the Port Colborne area. 77. With regard to the lawsuit by the Augustines against Inco, I am advised by Peter

Chapin, counsel to Inco in that matter, that the statement in the Kaufmann affidavit that the Augustine litigation is only at the discovery stage after seven years despite the expenditure of very large amounts of time, mo ney and effort by the Augustine family is misleading. The Augustine matter, which is case managed, is only at the discovery stage not despite, but because of, the Augustines tactics: The Augustines did not serve their original affidavit of documents until a year after the action was commenced. Inco's lawyers wrote in early 1997 to complain that the Augustines' productions were inadequate. A year and a half later, the Augustines produced boxes of documents for inspection but refused to list them in an affidavit of documents. Almost four years after Inco's complaint, the Court ordered the

Augustines to produce further documents in a wide variety of categories and list them in an affidavit of documents, together with the relevant documents in the boxes. Early this year, the Augustines were once again ordered to produce a supplementary affidavit of documents.

- 31 The Augustines did not begin their discovery of Inco until three and a half years after the action was begun. The Augustines took discovery of Inco for two and a half years, all the while preventing Inco from beginning its discovery of them. Once Incos discovery was allowed to begin, the Augustines interrupted Incos discovery for over half a year, claiming they were completely unavailable during farming season. The Augustines recently fired their lawyer of over six years after a mediation session conducted by a sitting judge of the Court. VIII. The Community Based Risk Assessment for Port Colborne 78. In 1996 the City of Port Colborne approached both the MOE and Inco for advice

as to how to deal with the numerous properties in the city containing elevated levels of nickel, copper and cobalt. In light of recent environmental guidelines governing development and change in use of properties, the City was concerned that many property owners in Port Colborne would face substantial remediation expense because of elevated levels of nickel, copper and cobalt in their soil. 79. Inco recognized that historic operations of its refinery, especially in the first half

of the last century, resulted in the accumulation of nickel, copper and cobalt on Port Colborne lands. Inco felt a social responsibility to assist its Port Colborne neighbours with assessment and possible remediation of their lands to the extent current conditions of the lands are the result of Incos historic emissions. 80. It was evident that individual site specific risk assessments, a standard approach

to remediation of individual sites, would represent a protracted and impractical process given the number of properties with elevated levels of nickel, copper and cobalt in Port Colborne. There

- 32 could be on the order of 1,000 or more affected properties in Port Colborne. Conducting

individual site specific risk assessments (SSRAs) for that many properties could take decades. 81. In 1998 and 1999 the MOE, the City and Inco met to discuss possible alternatives.

Copies of minutes of these meetings can be found at tab A(2) of the parties Joint Compendium previously filed with the court. Inco decided it would undertake and fund a cooperative effort with the City, its residents and government authorities to study the risks posed by nickel and other metals in the soil, collect relevant scientific information on the ecological and human health impacts of metals in the soil and develop an effective and practical strategy to remediate the soils to the satisfaction of the relevant governmental bodies. This effort came to be called the Community Based Risk Assessment or the CBRA. 82. The MOE approved the CBRA concept in late 1999. The City approved the

CBRA approach in March 2000. 83. In May 2000, Inco retained Jacques Whitford Environment Limited (JWEL) to

develop the specific aspects of the CBRA in consultation with the City and the MOE. The public was also afforded an ongoing role in the process through a Public Liaison Committee (PLC) appointed by the City Council. In addition to the costs of its own technical consultants for the CBRA, Inco agreed to pay for an independent technical consultant Beak International to advise the City and the PLC and act on their behalf. 84. The basic idea of the CBRA is a variant of the SSRA approach but designed to be

applicable to multiple properties instead of just one. The CBRA contemplates, among other aspects, the construction of a computer model for estimating risk, into which the precise soil parameters of individual sites would be fed. The model would then indicate whether risks exist for the site given its unique soil characteristics, its proposed use, the composition and

- 33 concentration of metals and numerous other factors and what remediation, if any, would be appropriate for the site. The studies, assessments and collection of scientific required to

construct the CBRA model are extensive. They include human health rsk assessments and i ecological risk assessments for each chemical of concern identified in the CBRA. 85. An outline of the technical steps involved in the CBRA process from initial

identification of the chemicals of concern to carrying out any ultimate remediations called for was developed by JWEL and presented to the MOE, the City and the PLC in a report dated November 30, 2000. The report is entitled Technical Scope of Work: Community Based Risk Assessment Plan for Port Colborne, Ontario and a copy is attached to the affidavit of Joseph Grignano as Exhibit O. 86. By December 2000, the scope of work for the CBRA outlined in the report had

been reviewed and endorsed by the PLC, the City and the MOE. 87. air sampling. An example of the type of work which will go into the CBRA process is ambient As mentioned above, one of the hazards associated with exposure to high

concentrations of nickel refinery dust was previously found to be respiratory cancer, specifically cancers of the lung and nasal-sinus cavities. There exists a body of scientific results on workers employed in nickel-producing and -using industries, and on animals, that demonstrates that respiratory cancer risk is linked to inhalation of relatively insoluble compounds of nickel that were present in certain workplaces in the past at very high concentrations. This work also demonstrated that there exist exposure concentrations to these insoluble nickel concentrations below which there occurs no excess risk for developing respiratory cancer. 88. As mentioned above, the components of nickel refinery dust that are associated

with increased respiratory cancer risk are nickel subsulfide and nickel oxide with the former

- 34 being the most potent. In an inhalation risk assessment it is therefore desirable to know the concentration of nickel and its speciation so that assessment of respiratory cancer risk can be made. For example, Inco has extensive workroom air monitoring programs for nickel and other substances in order to comply with current regulations regarding permissible worker exposures. 89. The CBRA therefore included a study component where ambient air is measured

to determine if a respiratory risk exists for the public as a result of previously soil-deposited particulate matter being re-suspended by local w inds. Consultants having expertise in air

sampling were hired as part of the CBRA to carry out these studies. It is necessary to recognize that the ambient air being sampled contains not only resuspended soil particles, but also contains newly generated nickel compounds from other sources. For example, it is known that nickel oxide particles are produced during combustion of fossil fuels. Power plants can cause ambient air to be enriched in nickel oxide for communities down wind. Also, the combustion of gasoline and diesel fuels in internal combustion engines adds nickel oxide to air. With these other sources known to exist, levels of nickel oxide observed in ambient air cannot necessarily be assigned as having arisen from soil resuspension. Nonetheless, the CBRA, being a broad process, includes ambient air sampling efforts despite the many alternate sources of nickel in the air. 90. For example, an early part of the ambient air sampling in Port Colborne connected

to the CBRA was focused on assessing the risk for children at schools during dust-generating agricultural activities being carried out close to schools. A report was issued in December 2000 by JWEL concerning air sampling undertaken at three schools to the north and northeast of the Inco refinery. A total of 48 air samples were taken both during and in the absence of agricultural activities during May-September 2000. The results clearly show that the measured nickel levels are far below the ambient air 24-hour guideline values set by the Province of Ontario. The report

- 35 concluded that there was no risk to children at these schools from nickel, copper, cobalt and arsenic. 91. Another air sampling campaign was conducted in August 2001 by JWEL to

determine nickel speciation in ambient air. Seven sample sites were established in a general direction downwind of Incos historical stacks. The highest nickel concentrations occurred for the sampling site at the corner of Durham Street and Reuter Road near the northeastern corner of Incos plant site. Total nickel analyses were again well below the 24-hour ambient air provincial government guideline. Nickel speciation was found to be variable depending on particle size. For the <2.5 micrometer particles, a total of 12 nickel-rich particles were identified by scanning electron microscopy performed at Lakefield Research. These particles were associated with iron oxide. No discrete nickel oxide or nickel subsulfide particles were observed. For the <10 micrometer particles, a different story emerged. About 75% of the total nickel was found to be as nickel oxide. These results, however, were complicated by the fact that virtually all of the mass accounted for in this 75% occurred as 8 large nickel oxide particles, larger than the cut point of 10 micrometers. This is important because the size of particles determines what part of the respiratory tract they can reach, and such large particles as these would not be able to penetrate into the deep lung region. Therefore, the fact that these large nickel oxide particles have been observed requires a careful analysis of just how much would be respired and where would such particles deposit in the respiratory tract. This kind of consideration is exactly what will be done as part of the CBRA. 92. Once the CBRA model is fully constructed, based on the results of ongoing

sampling and analysis, the remediation phase will begin. Suitable remediation, if and where called for, will depend on individual property characteristics. It might consist of, for example,

- 36 the additio n of substances to existing soil to stabilize soil conditions, the use of certain vegetation that naturally absorb nickel from soil (phytoremediation) or the removal of soil. 93. It is expected that the risk assessment portion of the CBRA will be completed by

the end of 2002 and the human health survey portion will be completed in 2003. The total cost to Inco of the CBRA work is estimated to be over $5 million. 94. The CBRA represents a unique commitment by Inco in many respects. Among

other things, the CBRA will offer remediation on a no -questions -asked basis, entirely at the voluntary expense of Inco: (a) Beneficiaries do not have to show legal liability on the part of Inco and are not subject to any legal defences Inco would have in a court of law. (b) Beneficia ries do not have to show that all or most of any chemicals of concern found on their property actually originated with Inco. (c) Beneficiaries do not have to show that chemicals in the soil caused actual harm or damage to themselves or their property. (d) Benefic iaries do not have to show that the CBRA model yielded results for their properties that would meet judicial standards of proof. 95. Furthermore, the development of the CBRA model is an open process, involving

on an ongoing basis the active participation and i put of the MOE, the City, the Regional n Department of Public Health and the public, all of whom are expertly advised. The CBRA is based on the most advanced and comprehensive assembly of scientific knowledge in the relevant

- 37 fields available. Moreover, the model will be constructed in accordance with the conservative principles of professional risk assessment, not legally prescribed standards of proof. 96. Most importantly, the CBRA has the official sanction of the relevant

governmental and regulatory bodies and is truly a community-wide process. Thus, the CBRA will ensure not only that individual properties are approved and safe for development and use but also that Port Colborne as a whole is recognized as a healthy place to live, with all of its lands safe for productive use in the eyes of the government of Ontario and the Regional health authorities. All of this will occur within a period of a few years, instead of decades (or never at all). 97. For particular areas of Port Colborne, where more urgent attention has been

thought necessary, the MOE and Regional health authorities have been actively engaged, conducting elaborate studies and risk assessments and demanding action where believed necessary. Inco, for its part, has cooperated with the MOE and not stood on its strict legal rights even where as in the case of the Rodney Street area it strongly believes that the MOEs analysis is scientifically flawed and its draft orders subject to serious challenge. 98. Thus even as the CBRA process goes forward, other action by the MOE, Inco and

the Region continues. In addition to the Rodney Street situation, where Inco has proceeded to voluntarily implement, rather than contest, remediation called for by the MOE, all parties have been actively engaged. For example, the Regional Health Department has carried out a lead screening study for Rodney Street area residents (finding average blood levels to be normal). Other matters of public concern have been addressed directly through other separately initiated studies, the data from which will be available for use in the CBRA. The MOE has carried out extensive soil sampling and resampling at area schools. Inco has sought to sample indoor air in

- 38 area homes. Inco and the United Steelworkers are jointly promoting an occupational clinical survey to examine the individual conditions of former workers at the refinery. A communitywide health assessment funded by Inco and designed in consultation with the PLC will begin this spring, involving extensive health surveys of residents and medical testing of 1,000 residents selected at random. A socio -economic assessment funded by Inco will be conducted that will include efforts to estimate general property value impacts, if any, related to the soil situation and the progress of the CBRA over time. 99. Certain activities of class counsel have impeded the progress of the CBRA and

other efforts by the MOE, the Region and Inco to study and address the situation in Port Colborne. Twenty of twenty- five properties designated by the MOE to be remediated in the Rodney Street area still await remediation because class counsel, acting as personal counsel to various residents, has not allowed Inco to proceed with voluntary remediation. As detailed in the material filed in connection with the plaintiffs indoor sampling motion, class counsel also actively sought to prevent residential indoor air sampling offered by Inco in response to requests by the MOE and the Regional Health Department. Scientific discussions open to the public have had to proceed with caution due to the exhibited tendency for partial information to be taken out of context and misrepresented or misinterpreted (as is the case with nickel oxide). Preliminary results from the CBRA are now typically withheld from open dis cussions because of potential misuse. While none of this has prevented the CBRA from proceeding, it has certainly slowed down the process and made it less open than it otherwise would have been. 100. Most recently, a comprehensive health study of Rodney Street area residents was

scuttled due to poor participation by residents. The Regional Health Department commissioned the study which would have cost over $1 million. As chronicled in local newspaper coverage

- 39 (copies of which are attached as Exhibit Q), despite strong initial interest and pleas for participation by the health authorities, the study was cancelled in December 2001 after class counsel mounted a concerted public campaign attacking it.

SWORN BEFORE ME at the City of Toronto on March 21, 2002. Bruce Conard, Ph.D Commissioner for Taking Affidavits