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 RON PEARSON I, Ron Pearson, of the City of Markham, in the Regional Municipality of York, MAKE OATH AND SAY: 1. Since October 1997 I have been employed by Barenco Inc., an environmental

engineering and site remediation service provider in Gormley, Ontario, as a Senior Scientist Risk Assessment. 2. Prior to joining Barenco Inc., I was employed by Her Majesty the Queen in Right

of Ontario (HMQ) from 1970 to 1997. I joined HMQ as an Assistant Agricultural Representative in Lambton County in January, 1970. In August 1970 I transferred to the

Department of Energy and Resources Management as an agricultural specialist with the Phytotoxicology Section and held several positions with the Phytotoxicology Section during the period from 1970 to 1997. From 1987 to 1997, I served as the Manager of the Phytotoxicology

-2Section, Standards Development Branch, Ontario Ministry of the Environment (MOE). A copy of my curriculum vitae is attached as Exhibit A. 3. Through the course of my employment in the Phytotoxicology Section, latterly as

Manager, I acquired extensive experience in assessing the impact of air and soil-borne contamination on terrestrial ecosystems. I have conducted over a thousand investigations of soil contamination and vegetation impacts in the Province and have published papers describing the results of some of those investigations. In particular, I participated, either directly or by way of review and approval of work performed by other Phytotoxicology staff members, in the assessment of the impact of atmospheric emissions from Incos Port Colborne refinery on soil, vegetation and domestic animals. 4. From 1993 to 1997 I participated directly in the development of MOEs Guideline

for Use at Contaminated Sites in Ontario. In particular, I was the scientific lead for staff committees with responsibility for the development of the generic soil and ground water criteria and the preparation of three supporting documents providing guidance on site assessment methodologies, site specific risk assessment (SSRA) procedures and on the scientific rationale for the development of the 117 generic soil and ground water remediation criteria. 5. In my current position, I am responsible for site specific ecological risk

assessments undertaken by Barenco Inc. in relation to remediation of contaminated sites. I have also provided project management and expert advice to Munic ipal, Provincial and Federal governments from time to time in matters pertaining to environmental site assessments, ecological studies and standards development. 6. I have knowledge of the matters to which I depose in this affidavit, except where I

have been advised of such matters, in which case I believe such information to be true.

-3Area of Alleged Impact in Alleged Category IV - The Farm Claimants 7. I have reviewed the statement of claim in this matter. It identifies two types of

alleged injury to property, namely loss of use and enjoyment and loss of value. In this affidavit I primarily address considerations relevant to determining alleged injury to property from the perspective of phytotoxicity in particular, the impact of soil nickel concentrations on plants and crops. 8. I have reviewed the affidavit of Wolfgang Kaufmann sworn January 16, 2002. In

his affidavit, Mr. Kaufmann identifies four categories of proposed class members. The first three categories are said to be distinguished by location of residence, as follows: (a) Rodney St. area; (b) Table A area; and (c) Table F area. The fourth category (Category IV), identified as Farm Claimants is said to be located within both the Table A and F areas. 9. Mr. Kaufmann identifies the Category IV area containing the Farm Claimants as a

zone extending north from Lake Erie to the 3rd Concession and between Cement Road/Main Street West/Hwy. 58 on the west and Neff Road/Michael Road to the east. He estimates the number of Farm Claimants to be approximately 200 individuals. Mr. Kaufmann does not provide any further breakdown of the Farm Claimants and I have not verified the accuracy of Mr. Kaufmanns approximation of the number of individuals within this zone. For the purposes of this affidavit only, I have assumed that it is accurate. 10. The MOE report published in 2000 and titled Phytotoxicology Soil Investigation:

INCO - Port Colborne (1998) (MOE, 2000) indicates in its contour mapping, that many of the farms included in the geographical area identified in this case may have total soil nickel concentrations that are well below the level of 200 parts per million (ppm) nickel which forms the basis for the MOEs generic Table A criterion value. Total soil nickel concentrations below

-4200 ppm are generally accepted to preclude phytotoxic effects. Soil nickel concentrations above 200 ppm may or may not result in a phytotoxic effect, depending on a variety of factors, as discussed below. 11. I have not reviewed any individual studies or reports supporting the property

damage claims for this category. However, based on the documented factors affecting soil metal impacts on plants, in my opinion identifying any crop loss damage due to nickel or other form of phytotoxicity requires assessment on a property by property basis. As such, there is no scientific basis for assessing such damages based solely on the location of a given farm property in one or more alleged zones of soil metal concentration. 12. As a preliminary point, from the limited amount of data (MOE, 2000) on soil

metal contamination of tilled farm fields, it is apparent that the MOE in recent times has taken samples in fields cultivated for crop production at only two locations within the Category IV area. Those locations and the corresponding total nickel concentrations in the relevant plough layer (average of samples from 0-5, 5-10 and 10-15 cm) are shown in the accompanying Figure 1 (from Table 4 of MOE, 2000) attached as Exhibit B. Total soil nickel concentrations range from 108 to 1,100 ppm at the two locations. Two locations with a ten-fold difference in soil nickel concentrations cannot defensibly be used in a predictive manner to delineate zones of metal contamination. 13. At all other MOE sampling sites, the soil has been collected from sites that have

not been cultivated or recently disturbed. At most of these undisturbed sites, the soil was taken from the 0-5 cm depth only. However, in some cases, deeper samples (5-10 and 10-15 cm) were also collected. For the undisturbed sites sampled at depth, the average of the three depths has

-5been shown in Figure 2, attached as Exhibit C, even though such samples would not reflect the dilution resulting from tillage and crop management. 14. From Figures 1 and 2, it is apparent that many of the farms included in the zones

identified in Mr. Kaufmanns affidavit have total soil nickel concentrations well below the 200 ppm level. 15. Moreover, even at locations with total soil nickel concentrations exceeding 200

ppm, a number of critical diagnostic requirements and crop/soil management factors would need to be assessed on a year-by-year, field -by-field and crop-by-crop basis in order to identify any possible crop impacts from such concentrations. Determination of Soil Metal Impacts on Crop Productivity 16. Determining the existence and magnitude of any nickel- induced phytotoxicity

requires consideration of a number of factors (discussed below), none of which is determinative in itself. Total soil nickel concentration is only one such factor. 17. An authoritative paper on soil metal: plant relationships (Chang et al., 1992),

concluded that in order to substantiate an incidence of metal toxicity, one must confirm that: l plants have sustained injuries; l a potentially phytotoxic metal has accumulated in the plant tissue; l the observed abnormalities are not due to other disorders of plant growth; and l the biochemical mechanisms that cause the metal to be harmful to plants are observed during the course of growth.

-618. In the case of nickel, to identify any injury, a qualified professional would need to

first visually assess the crop in question for evidence of nickel-related toxicity symptoms. Those symptoms will vary between crops and even between cultivars of the same crop. Also, as plants may recover from foliar injuries depending on the severity, stage of growth and other factors, observations of the crop would need to be made at different stages of its life cycle. 19. The next step is to sample and analyse the affected tissues to confirm that any

foliar symptoms are consistent with generally accepted phytotoxicity thresholds and to rule out mimicking symptoms caused by other biological or abiotic agents (e.g. insect damage, nutrient deficiencies). Because the thresholds will vary depending on the crop and on tissue maturity, they are not in and of themselves a definitive indicator of phytotoxicity impacts. However, in combination with detailed visual observations and soil analysis, they can serve as an effective complementary diagnostic tool. 20. Next, one needs to confirm that the soil is contaminated with nickel at

concentrations that are consistent with the evidence of foliar accumulation and toxicity. Although this is an important step in the diagnostic process, it, like the other diagnostic tools, is not in itself determinative of causality. Other variables influence the availability of the metal to plant roots, its uptake and accumulation by plants and its impact on growth/productivity. Some of the main variables which need to be considered in assessing the role of soil nickel contamination in crop productivity impacts are summarized below. 21. The following are some of the factors which affect the uptake and accumulation

of metals from soil: (a) Soil type : This includes organic matter content, clay/silt/sand composition, cation exchange capacity, soil depth to overburden and drainage status. Soil type can

-7dramatically influence the availability of soil metal contamination to plant roots and significantly influence the potential for plants to extract and accumulate the metal from the soil. This is related to ionic adsorption (chemical binding)

differences among soil constituents, differences in how the metal is incorporated into soil matrices and differences in chemical complexation of the metal by other soil and organic chemicals under varying reducing and oxidation conditions. Soil types are known to vary considerably within the Category IV area and there can be several different soil types within a single field. (b) Soil acidity: The acidity of the soil influences soil metal mobility and availability for uptake by plant roots. Soil acidity also influences the chemistry of other macro and micro plant nutrients and these, in turn, can attenuate or intensify uptake and accumulation of soil metals. Soil acidity in cultivated fields is

impacted by agricultural chemicals and crop management factors and is normally monitored through soil testing prior to planting and maintained in a desirable range through addition of limestone-based materials. (c) Soil nutrient status: The level of macro and micro nutrients required for optimum plant growth and productivity also has been documented to influence the uptake and accumulation of some soil metals. These nutrient: metal interactions can be positive or negative and are both crop and soil (field) dependent. (d) Soil metal availability: As discussed, the chemical form of the contaminant in soil plays a major role in plant availability and potential for root uptake and crop impacts. Chemical form would be influenced by the chemical form of the

contamination source and by both physical (soil type and chemical status) and

-8biological soil processes (root exudates, micro-organisms). Many of these factors have already been discussed. 22. It is well established that different crops respond differently to a given soil metal

concentration, both in terms of uptake/accumulation as well as growth/productivity impacts. Even within species, cultivar or varietal differences can influence the magnitude of effects at a given soil metal concentration. Other factors that could significantly influence potential crop yield at a given farm property include variations in local climatic conditions (meteorological influences), soil capability classification and farm management practices (e.g. fertility, insect, disease and weed control, soil drainage, varietal selection, seed quality, planting date and stand/population). 23. Farm management practices not only influence the potential yield of a given crop

in any given year, but in the case of nickel and other soil metals, also provide farmers with an effective tool to mitigate against potential impacts of soil metal contamination. For example, it is well established that maintaining soil pH in a desirable range for maximum crop productivity and full utilization of soil nutrients will also dramatically reduce metal availability for root uptake. In numerous published studies it has been shown that increasing soil pH to levels recommended for production of most farm crops eliminated nickel toxicity by significantly reducing nickel uptake and accumulatio n in nickel contaminated soils. 24. Without specific information on these factors on a year-by-year and field -by-field

basis, it would not be possible to ascribe variations or reductions in crop yield within the Category IV area to a single component such as soil nickel concentration. An example of the variability in grain corn yield from one year to another over the period 1917-1999 in the Niagara Region (vs. the Provincial average) is shown in Figure 3, attached as Exhibit D. Prior to the

-9merger of Lincoln and Welland Counties into the Niagara Region in 1971, crop yield statistics were recorded separately. Figure 4, attached as Exhibit E, shows additional variability

associated with soil and climatic conditions within these neighbouring counties for the period from 1917-1970, and further demonstrates the importance of geographic, soil capability and climatic factors in the determination of yield potential for this area and the need for a field -byfield evaluation of any soil nickel contamination impacts on crop yield. 25. In summary, the impact of soil metal concentrations on farm crops and other types

of plants is dependent on a wide variety of factors which can vary from crop to crop, from field to field and from one property to another. Accordingly, the determination of crop productivity impacts at a given soil nickel concentration must be conducted on a year-by-year, field -by-field and crop-by-crop basis, with observations by trained professionals, sampling and analysis of crop tissues and soil for various elements and an evaluation of individual farmers crop and soil management practices, all of which directly affect crop yield potential in any given field in any given year. Reference Citation: Chang, A.C., Granato, T.C. and Page, A.L. 1992. A Methodology fo r Establishing Phytotoxicity Criteria for Chromium, Copper, Nickel, and Zinc in Agricultural Land Application of Municipal Sewage Sludges. J. Environ. Qual. 21:521-536.

SWORN BEFORE ME at the City of Toronto on March 21, 2002. Ron Pearson Commissioner for Taking Affidavits