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Court File No.

: 12023/01

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: WILFRED ROBERT PEARSON Plaintiff -andINCO 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 JAMES JOHANNES (JIM) SMITH

I, JAMES (JIM) JOHANNES SMITH, of the City of Toronto, Province of Ontario, MAKE OATH AND SAY AS FOLLOWS:

1. I am the Director of the Standards Development Branch of the Environmental Sciences and Standards Division of the Ontario Ministry of the Environment (MOE). I have held this position since 1998 and was in the position of Acting Director from 1996 to 1998. I have

been an employee of the MOE since 1979. A copy of my curriculum vitae is attached as Exhibit A.

2. As Director, I have been responsible for managing the development of the MOEs Soil Investigation and Human Health Risk Assessments for the Rodney Street community in 2001 and 2002. This has involved assigning appropriate resources and expertise, ensuring that appropriate Ministry policies and procedures were being followed and approving any new science policy direction. As well, MOE employees who currently report to me or who have previously reported to me have been involved in human health risk assessment studies and phytotoxicology investigations relating to pollution in Port Colborne since at least 1991. I have worked closely with and spoken with those employees, notably Dave McLaughlin (Supervisor, Terrestrial Investigations and currently Senior Project Coordinator for the Ministrys Soil Investigation and Human Health Risk Assessment for the Rodney Street Community, Port Colborne) and Dr. Brendan Birmingham (Senior Research Toxicologist). I have also spoken with Dr. Bryan Leece (former Senior Regulatory Toxicologist). In addition, I have reviewed relevant records concerning the history of this matter. Based on all the above, 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.

1997 HUMAN HEALTH RISK ASSESSMENT

3. I have been advised by Dave McLaughlin that, in 1991, the phytotoxicology section of the MOE conducted soil and vegetation surveys in the vicinity of the refinery in Port Colborne owned and operated by Inco Ltd. (Inco). These surveys were part of an on-going assessment carried out in the area in response to local concerns over emissions of nickel and other metals from the Inco facility. Analyses of surface soil samples (0-5cm depth) showed that the levels of nickel, copper and cobalt exceeded the MOE phytotoxicology guidelines at many of the 37 sites examined. Most significantly, at one location, the level of soil nickel was found to be 9,750 ppm. This work was published by the Ministry in 1994.

4. As a result of these findings, a Human Health Risk Assessment (HHRA) was undertaken by the MOE to determine whether there was any evidence of risk to human health associated with exposures to the nickel, copper or cobalt in the soils of the Port Colborne area. An HHRA is generally undertaken by the MOE when chemicals in soil are found at levels that raise concerns about potential health risk in a community. It should be noted that the resulting report refers to this HHRA as a site specific risk assessment since terminology for these types of studies was still evolving in the early to mid-90's.

5. The approach taken for the HHRA used accepted procedures to estimate the health risk posed by environmental contaminants. In assessing levels of chemicals in soil, the MOE considered both the range of concentrations found and the extent to which they were distributed in the community.

6. The report assessed health risks along two lines: (1) by undertaking a risk assessment and (2) by assessing population health. A risk assessment was undertaken to determine the potential health effects which could result from elevated soil levels of nickel, copper and cobalt in the Port Colborne area. Population health was evaluated to determine if there was any evidence of increased disease incidence in the Port Colborne area as compared with the rest of Ontario. The MOE conducted the risk assessment while the Regional Niagara Public Health Department (RNPHD) conducted the population health assessment.

7. In conducting the risk assessment, the MOE made use of environmental monitoring data and recent toxicological information to evaluate the likely exposure to metals in the Port Colborne area and to determine the potential health effects from such exposure. The risk assessment model used by the MOE was consistent with the risk assessment protocols used by regulatory organizations such as Health Canada, the US Environmental Protection Agency and environmental agencies at the US state level.

8. The model has four major elements: hazard identification, dose-response assessment, exposure assessment and risk characterization. The first element, hazard identification, involved the MOE in examining toxicological information to determine the types of health effects which had been reported following exposure to each of the metals in question. Then, the MOE identified the levels of exposure at which the reported effects arose (dose-response assessment). The MOE also made use of multi-pathway modeling to estimate the likely

total exposures to each of the metals in question from various different routes of exposure including inhalation and ingestion (exposure assessment). Since the primary concern was the level of metals in the soils, the assessment focused on exposures from soils and dusts and from the consumption of backyard garden produce. Inhalation and drinking water exposures were found to be minor components (less than 1%) of the total exposure of all three metals. The MOE then combined the toxicological and exposure information to estimate the potential health effects which were likely to occur (risk characterization).

9. The hazard identification and the dose-response information was based on the work prepared for the Assessment of Human Health Risk of Reported Soil Levels of Metals and Radionuclides in Port Hope (MOE 1991). This was a similar HHRA that was conducted in the community of Port Hope. Additional toxicological information for nickel was obtained by the MOE toxicologist who developed this report by reviewing current toxicological evaluations and profiles that were prepared by key agencies such as the International Agency for Research on Cancer (IARC), the Agency for Toxic Substances and Disease Registry (ATSDR) and the Ontario Ministry of Labour.

10. The exposure assessment models for estimating intakes from air, drinking water, soils and dusts were based on those used in the Port Hope Assessment. The Port Colborne risk assessment differed, however, from that prepared for Port Hope in that the contributions to intakes made by the consumption of backyard garden produce grown in the Port Colborne area were considered in the estimates of total intakes. Information on the uptake of nickel,

copper and cobalt by various vegetables was provided by the Phytotoxicology Section of the Standards Development Branch of the MOE. This information contained plant uptake data specific to the Port Colborne area.

11. The levels of the three metals in Port Colborne drinking water were taken from 1990-1994 levels detected in the Port Colborne municipal system under the MOE Drinking Water Surveillance Program as well as the highest levels reported in samples taken from 6 local wells.

12. Air monitoring data for the Port Colborne area was available only for nickel. The 1993 data for nickel in air in Port Colborne was used, whereas the air concentrations for the other two metals were estimated based on information from other sources.

13. The data concerning soil metals was based on the 1991 survey of soil and vegetation. Thus, the highest soil nickel level used in the 1997 human health risk assessment was 9,750 ppm. This was the highest level believed to exist in urban residential areas in Port Colborne based on repeated analysis at the same site during different years.

14. The population health survey, the second component of the HHRA, was conducted by the epidemiologist from the RNPHD who examined population data for evidence of any elevated incidence of cancer or adverse reproductive outcomes within the Port Colborne population. There was no evidence of an elevation in the rate of reproductive failure or

birth defects in the Port Colborne population compared with the Ontario population. In addition, the most current cancer incidence rates (at that time) for all sites and both sexes were within expected limits. While a greater than expected number of lung cancer cases were observed amongst Port Colborne males in the time period 1979-1983, the RNPHD concluded that this excess could have been related to earlier occupational exposures to lung carcinogens or other factors associated with lung cancer.

15. Based on both the risk assessment and the population health survey, the MOE and RNPHD jointly concluded in 1997 that no adverse health effects were anticipated to result from exposure to nickel, copper or cobalt in soils in the Port Colborne area. The agencies also found that the review of population health data did not indicate any adverse health effects which may have resulted from environmental exposures in the Port Colborne area. The report was reviewed internally by senior technical staff with the MOE and by the medical toxicologist at the Ontario Ministry of Health. The findings were published in August 1998 in a report entitled Assessment of Potential Health Risk of Reported Soil Levels of Nickel, Copper and Cobalt in Port Colborne and Vicinity, May 1997 (the 1997 HHRA). A copy of the 1997 HHRA is attached as Exhibit B to this Affidavit.

16. I am advised by Bryan Leece, who was the primary MOE author of the 1997 HHRA that a draft version of the report was reviewed by experts at Health Canada. Mr. Leece further advised me that the comments by the Health Canada experts did not affect the conclusions of the report but rather were editorial in nature or provided technical clarification.

2000 HUMAN HEALTH RISK ASSESSMENT

17. I have been advised by Dave McLaughlin that, following the release of the 1997 HHRA, the MOE undertook additional soil sampling studies in 1998 and 1999 in order to more precisely define the geographic extent of soil contamination. These additional studies involved a more extensive soil sampling program and resulted in a better understanding of the extent of soil metal contamination in the Port Colborne area. The 1998 and 1999 soil surveys did not find higher soil nickel levels than in previous surveys. Therefore, the health risk study conclusions from 1997 were still applicable to the 1998 and 1999 soil investigations.

18.

The 1997 HHRA was re-released in 2000 by the RNPHD as the document entitled Technical Report - Assessment of Potential Health Risk of Reported Soil Levels of Nickel, Copper and Cobalt in Port Colborne and Vicinity, May 1997 Revised January 2000 (hereinafter, the 2000 HHRA). A copy of the 2000 HHRA may be found as Exhibit G to the Affidavit of Lynne McArdle, sworn October 18, 2001, for the Crowns motion for further and better particulars.

MARCH 2001 HUMAN HEALTH RISK ASSESSMENT

19.

I have been advised by Dave McLaughlin that, during a public information forum held in January 2000 at the Port Colborne City Hall, a resident of Rodney St., a street located adjacent to the Inco refinery, requested that the MOE sample soil on his property. As a result of this request, phytotoxicology scientists from the MOE sampled the front and back yards of the property in June 2000. Analysis of the soil samples revealed soil nickel concentrations at depth (10-15cm) of 16,000 ppm. These results were considerably higher than expected and considerably higher than the highest previous result of 9,750 ppm. As noted previously, the 9,750 ppm figure had been obtained through the MOEs investigations conducted in 1991 and it had formed part of the basis for the conclusion in the 1997 and 2000 Health Studies that no adverse health effects are anticipated from exposure to the levels of nickel in soil in the Port Colborne area.

20.

Dave McLaughlin has advised me that, as a result of the findings for the single Rodney St. property, the Medical Officer of Health requested that the soil be sampled on the remaining 16 residential properties on Rodney St. This additional sampling of front and back yards was conducted on October 3 rd and 4th, 2000. Preliminary results indicated that surface soil nickel levels ranged up to 17,000 ppm and that the soil metal levels were highly variable between properties.

21.

Following receipt of the data concerning metal levels, MOE human health toxicologists conducted a screening level risk assessment (a worst case assessment) on the soil data and determined that the US Environmental Protection Agencys health-based nickel oral

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reference dose was exceeded for the maximum nickel concentration found during the soil testing. The reference dose is the level of a given substance to which individuals could be exposed on a daily basis for a lifetime without an appreciable risk of non-carcinogenic adverse effects. In the context of this screening level risk assessment, an exceedence of the nickel reference dose does not automatically mean that an adverse health effect will occur, but it does erode the confidence that an adverse effect will not occur.

22.

In light of this new information concerning contamination in the Port Colborne community, the MOE was of the view that further soil investigation was warranted and that an additional HHRA should be conducted rather than waiting for the CBRA process that was in progress in Port Colborne to complete the HHRA being conducted in conjunction with that process.

Soil Investigation

23.

Our further investigation commenced with a community wide sampling program. In total, more than 1,300 samples were collected from 179 properties in the Rodney Street community.

24.

In addition to unexpectedly high nickel levels above the previously reported level of no concern of 9,750 ppm, this sampling revealed that some levels of copper, cobalt, zinc, arsenic and lead were also elevated and exceeded their respective trigger values in Table A

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of the MOEs Guidelines for Use at Contaminated Sites in Ontario, 1997.

25.

I have been advised by Dave McLaughlin that, in addition to the residential sampling, soil trenches were dug at several locations in the vicinity of Rodney St. to determine if soil was contaminated at depth. Also, the City of Port Colborne requested that the MOE sample fill material that was used in the construction of a playground located on Welland St., north of Nickel St. As a result, trenches were also dug in two parks: the Welland St. park, and the baseball park at the southwest corner of Davis and Rodney Streets. In total, seven trenches were excavated from four areas: 1) the baseball diamond, 2) a vacant lot, 3) the shoulder of Rodney St, and 4) a park.

26.

I have been further advised by Dave McLaughlin that the average soil nickel concentration in the Rodney Street community was found to be 2,545 ppm. This was consistent with the 1998 and 1999 MOE soil investigations that predicted that this area of Port Colborne could have between 2,000 and 4,000 ppm nickel in surface soil. However, property by property sampling revealed substantial variation in both the numbers of contaminants and the soil contaminant concentrations, with the maximum soil nickel level on one property reaching 17,000 ppm.

Human Health Risk Assessment

27. The HHRA, which commenced in the fall of 2000, was released at the end of March, 2001 as

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a report entitled Soil Investigation and Human Health Risk Assessment for the Rodney Street Community: Port Colborne (2001) (hereinafter, the March 2001 HHRA). A copy of this report may be found at Exhibit J to the Affidavit of Lynne McArdle, sworn October 18, 2001, in support of the Crowns motion for further and better particulars.

28.

The key findings of the March 2001 HHRA were as follows: i. 10,000 ppm soil nickel was an appropriate intervention level to protect toddler aged children in the Rodney Street neighbourhood; ii. Nickel levels in the neighbourhood do not pose any immediate or long-term risks to adults; iii. 16 of 179 properties had elevated nickel levels in excess of 10,000 ppm, and therefore warranted remediation; iv. v. Inco was the source of the soil nickel; 10 properties had soil l ad levels of over 1,000 ppm lead, a potential risk to e children. These elevated levels were attributed to historic domestic use of lead based paints, leaded gasoline and discarded lead-acid batteries and not to Inco emissions. As such, the MOE could not order Inco to remediate; vi No further action was warranted for the remaining five metals (antimony, beryllium, cadmium, copper and cobalt) and arsenic.

29. As a result of the March 2001 HHRA, the MOE proposed a draft Order requiring Inco to remediate the 16 properties which were found to have soil nickel levels in excess of

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10,000 ppm and to sample properties north of Louis Street. The March 2001 draft Order is detailed in the Affidavit of Kal Haniff, sworn March 28, 2002. The draft Order and the report on which it was based were subject to a 30 day public consultation period.

30.

In April 2001, Inco agreed to voluntarily remediate those properties.

31. i

The March 2001 HHRA was peer reviewed by an international panel of experts, namely: Dr. Lynne Haber, Toxicological Excellence for Risk Assessment (TERA), Cincinnati, Ohio; ii Dr. John Wheeler, Agency for Toxic Substances and Disease Registry (ATSDR), Atlanta, Georgia; iii Dr. Ambika Bathija, United States Environmental Protection Agency (US-EPA), Washington, D.C.; iv Dr. Tor Norseth, Norwegian National Institute of Occupational Health, Oslo, Norway.

32. The peer reviewers provided a critical review of the process used by the MOE in preparing the March 2001 HHRA.

Calculation Error

33.

Shortly after the release of the March 2001 HHRA, the MOE discovered a calculation error in one of the laboratory tests that the MOE used to estimate bioaccessibility of metals

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in the soil. It was believed that the error could result in a change to the reports recommendations pertaining to nickel but not the other metals and arsenic in soil. As a result, the MOE undertook steps to reassess the March 2001 HHRA. Inco, however, continued with its plan of voluntary remediation. The MOE also carefully reviewed the public comments that were received during the 30 day public comment period. The comments received ranged from the MOE being too stringent to not being stringent enough in some of the values it used and the approach it took in developing the intervention level for nickel. Additional comments were provided by RNPHD which had submitted the report to a number of reviewers, including Health Canada.

34.

In May, 2001, in response to further requests from the public, the MOE conducted additional soil sampling in the Rodney Street community. The MOE also conducted tests with respect to nickel bioaccessibility, nickel speciation in soil, and air monitoring.

35.

In addition, the MOE expanded its list of peer reviewers to include: i. ii. Dr. Rosalind Schoof, Gradient Corporation, Seattle, Washington State; and Dr. Robert Jin, The Ontario Ministry of Health and Long-Term Care,

and increased the role of the peer reviewers to not only provide a critical review of the MOEs work, but also to reach consensus as a panel on key issues in order to guide the MOE in making critical scientific judgments in revising the March 2001 HHRA.

36.

During the May to October period, I sent two letters to the Rodney Street community

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residents and two letters to the residents of the City of Port Colborne. These letters provided residents with information about the review process, the beliefs of the MOE and the RNPHD about health risks and steps residents could take to reduce their exposures. I also attended two public meetings to answer questions and provided a presentation on the MOEs work in July. Copies of the letters are attached as Exhibit C to this affidavit and a copy of the presentation is attached as Exhibit D.

OCTOBER 2001 HUMAN HEALTH RISK ASSESSMENT

37.

Based on the results of the new tests and the consensus recommendations of the peer review panel, the MOE produced the October 2001 Human Health Risk Assessment (October 2001 HHRA). This consensus was achieved after a full two day face-to-face meeting of the experts led by an independent facilitator, Dr. Robert Willis, of Cantox Environmental Inc., a nationally recognized consulting firm based in Ontario.

38.

In addition, the MOE had invited Health Canada to review an earlier version of the October 2001 report. In early October, 2001, a face-to-face meeting was held with them to discuss their technical comments.

39.

The MOE also retained a number of outside experts to contribute to and to review the report, including experts in the areas of soil sampling, terrestrial investigations and statistical methods for the soil investigation component of the report.

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40.

On October 30, 2001, the MOE posted the report on the Environmental Bill of Rights Registry for a 30 day public consultation. A copy of the full report went to all 25 affected property owners, and was also placed on the MOEs website. A hard copy was placed in the Port Colborne public library. As well, a letter went from me to every resident of Port Colborne, briefly summarizing the report, explaining how they could obtain a copy, and inviting them to participate in the 30 day public comment period. A copy of the letter is provided in Exhibit C. In addition, an open house was held in Port Colborne to discuss the report. Copies of the report were available at the open house.

41.

The October 2001 HHRA was structured similarly to the March 2001 HHRA, but was based on different and more sophisticated testing, as well as the expanded peer review process noted above.

42. The October 2001 HHRA came to essentially the same conclusions as the March 2001 HHRA for arsenic and all other metals except for nickel. However, for nickel in soil, the intervention level was lowered from 10,000 ppm to 8,000 ppm. The result was that an increased number of properties in the Rodney Street community, a total of 25, required remediation. The draft clean up Order was revised accordingly. A copy of the October 2001 HHRA is attached as Exhibit E to this Affidavit.

43.

As a result of the public circulation of the October 2001 HHRA, the MOE received 12

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submissions, representing all principle stakeholders, including: Inco, Incos consultants, the technical consultant for the Public Liaison Committee under the Community Based Risk Assessment (CBRA) process, the RNPHD, Mr. Eric Gillespie; a community group, and several from members of the public.

44.

The MOE considered all comments received, and consulted with its expert panel of peer reviewers, to finalize the October 2001 HHRA. The result is a report entitled Soil Investigation and Human Health Risk Assessment for the Rodney Street Community, Port Colborne (March 2002) (the March 2002 HHRA).

MARCH 2002 HUMAN HEALTH RISK ASSESSMENT

45.

The findings of the March 2002 HHRA are being broadly distributed to the residents of Port Colborne and to all interested stakeholders. A copy of the report is attached as Exhibit F to this Affidavit. A copy of the letter that is being sent to residents along with the report is attached as Exhibit G to this Affidavit.

46.

The key recommendations of the March 2002 HHRA reaffirm those in the October 2001 HHRA: i An intervention level of 8,000 ppm should be set for soil nickel. The intervention level for nickel requires action through remediation of soil;

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2.

Soil nickel levels in the community should not pose any immediate or long-term risks to other age groups;

iii

An intervention level of 1,000 ppm for lead should be set for play areas on residential properties or in public areas covered by sod or grass to which children have access. The bare soil intervention level for lead is 400 ppm for these areas. The intervention levels for lead require action through follow-up by individual residents to reduce personal exposure to lead;

iv

No action for the remaining five metals (antimony, beryllium, cadmium, copper, cobalt) and arsenic in soil is required.

47.

In carrying out the investigation and assessment, the MOE identified soil-nickel levels in excess of 8,000 ppm, in at least one composite sample, in the first 30 cm of soil at 25 properties. The soil-nickel has resulted from historical emissions from Inco.

48.

The MOE also found soil lead levels in excess of 1,000 ppm at eleven properties. These soil-lead levels are typical of older urban residential neighborhoods and result from the historical use of lead based paints, leaded gasoline and discarded lead-acid batteries.

49.

Simultaneous with the release of the March 2002 HHRA, the Director of the West Central Region for the MOE, Kal Haniff, served the final remediation Order on Inco and provided

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all known affected property owners with a copy of same. The Order will implement the recommendations and conclusions of the March 2002 HHRA. The Order is detailed in Kal Haniffs affidavit, sworn March 28, 2002, as is the relationship between the March 2002 HHRA, the Order and the CBRA process.

THE CBRA

50.

I have also considered the overall merits and benefits of the CBRA process compared to the court supervised process of litigation, as it has been described to me by my legal counsel Jack Coop. In my view, the CBRA process, as a multi-party, consultative, scientific inquiry involving the input of all stakeholders, should be a better means of arriving at a balanced, sound and community-accepted solution to a community-wide environmental problem than an adversarial, class action. A class action will not only tend to undermine the CBRA process by diverting the resources of the parties and polarizing them in their positions, it will also require court rulings on evolving and complex scientific questions which are better resolved through a consultative approach among scientific experts in their respective fields, the PLC and the public. To this end, I also believe that the March 2002 HHRA is an important contribution to the CBRA process.

51.

Based on the best and most recent scientific information currently available, and the advice of an international panel of experts, once Inco has implemented the Directors Order which is based on the recommendations of the March 2002 HHRA, the soil nickel levels in the

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Rodney Street community should not pose any immediate or long-term risks to the health of residents. In terms of future developments, the CBRA process is undertaking extensive health studies, an ecological risk assessment and a human health risk assessment which will provide important, additional scientific review and assurances to the community that their health and environmental concerns will be fully addressed. It is noteworthy that the Director issuing the Order, Kal Haniff, has advised me that he contemplates that the Order will only be fully implemented through the CBRA process.

52.

I swear this affidavit in response to the certification motion of the plaintiff dated January 17, 2002 and for no improper purpose.

SWORN before me at the City of ) Toronto, in the Province of Ontario, ) this 28th day of March, 2002 )

________________________ JAMES JOHANNES(JIM) SMITH

______________________________ A Commissioner, etc.

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