Court file no.

: 12023 /01

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: WILFRED ROBERT PEARSON Plaintiff - and -

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

Defendants

AFFIDAVIT OF ELLEN SMITH Sworn April 9, 2002

I, ELLEN SMITH, of the City of Port Colborne in the Regional Municipality of Niagara, MAKE OATH AND SAY:

1.

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

Personal Background 2. I am 34 years old and live with my husband and two sons (ages 10 and 5) at 91 Rodney Street, Port Colborne. My husband has lived in Port Colborne all of his life. I moved to Port Colborne when we purchased our home in 1991. Its current assessed value for municipal taxation purposes is $61,000.

3.

In or about the early spring of 2000, I and my family became aware that a Community Based Risk Assessment (CBRA) process was being initiated in Port Colborne to try to address contamination within the community caused by the operation of Incos Port Colborne refinery (the Refinery).

4.

On September 20, 2000, we were notified by the Ministry of the Environment (MOE) that levels of nickel contamination of up to 14,000 parts per million (ppm) had been discovered on our property. Subsequent testing by the MOE has found levels elsewhere on our property as high as 16,000 ppm.

5.

Throughout this time, I have attempted to become and remain as knowledgeable as possible on the issues related to the contamination of our property and the community by reading virtually all of the reports issued by the MOE, Inco and its consultants both under and outside of the CBRA process that have been made public, and those reports issued by independent entities such as consultants retained on behalf of the plaintiff as part of the proposed class action lawsuit, and by following the issue in the media.

6.

Since the summer of 2000, I or my husband have also attended virtually every public meeting and open house held on this subject. I have also reviewed the Minutes of virtually every meeting where minutes have been kept and have been made available to the public.

7.

In addition, I have been actively involved in this issue both as an individual and as part of the community group Neighbours Helping Neighbours. Neighbours Helping Neighbours is the largest and most active of the citizens organizations formed in Port Colborne in response to the citys contamination problems. Through my own efforts, and through my work on behalf of Neighbours Helping Neighbours, over the past two years I have spoken to or consulted with hundreds of Class Members from all parts of Port Colborne, many of whom share the concerns expressed in this affidavit.

8.

In preparation for swearing this affidavit, I had previously reviewed numerous materials filed by all of the parties to this litigation in relation to various motions that have already been heard by the Court. In addition, I have now reviewed portions of the affidavit of Dr. Bruce Conard sworn March 21, 2002 (the Conard Affidavit), as well as portions of the affidavit of Dr. George Becking sworn March 21, 2002 (the Becking Affidavit), portions of the affidavit of Frank Clayton sworn March 20, 2002 (the Clayton Affidavit), portions of the affidavit of Brian Watts sworn March 18, 2002 (the Watts Affidavit), portions of the affidavit of Dave McLaughlin sworn March 28, 2002 (the McLaughlin Affidavit), portions of the affidavit of James Smith sworn March 28, 2002 (the Smith Affidavit) and portions of the affidavit of Kal Haniff sworn March 28, 2002 (the Haniff Affidavit), and now wish
3

to make the following comments in response.

Delays in the CBRA Process 9. As a resident of Port Colborne who has followed the CBRA process from its outset, it is clear that since its inception the CBRA process has been plagued by delays.

10.

Since the beginning of the CBRA in the Spring of 2000, and continuing throughout the process, there has been an almost endless series of lapses and setbacks with reports, protocols, proposed schedules and general administrative activities.

11.

On numerous occasions, Incos primary consultant Jacques Whitford Environmental Limited (JWEL) has been reluctant or unable to bring forward the required protocols to the various proposed studies in Port Colborne within the time frames established for these steps to occur within. Once they have been presented, often further delays ensue when scheduling problems arise and/or controversy between consultants occurs.

12.

For example, early in the process, JWEL committed publicly to preparing a Technical Scope of Work for the CBRA process for input and scrutiny by all stakeholders. This Scope of Work was to indicate the direction that the entire CBRA was to follow, how to get to the process endpoint, and the appropriate steps and studies needed to achieve this.

13.

On a number of occasions, JWEL was not prepared to present the Scope of Work at public
4

meetings, and cited reasons of internal conflicts with Inco as the reason for these delays. After months of waiting, the Scope of Work was finalized and agreed upon, only because JWEL was forced to do so in a day long session, closed to public access, by the other stakeholders in this process.

14.

This document was one of the more significant steps in the CBRA process, given that it provides the overall strategy/gameplan that the entire CBRA must now follow. One would have hoped that Inco and its consultants would have been much more efficient in completing this step, and that the process would not have excluded the public when final decisions were being made. However, this did not occur.

15.

This is but one of many, many examples of how problems and delays in the process were occurring from the outset of the CBRA, and for at least a year before the advent of this claim.

Studies Begun After the Initiation of the Class Action 16. The two most important studies in the entire CBRA process from most residents point of view are a human health study (now known as a Community Health Assessment Project) and a property valuation study. Attached and marked as Exhibit A is a copy of a public presentation given on July 26, 2001 by Ventana Clinical Research Corporation, the consultants retained by Inco to conduct the human health study. However, up until the initiation of the class action in March of 2001, although both studies were expressly stated to be part of the CBRA Scope of Work, nothing had been done in relation to either of these
5

studies including even the most preliminary step of retaining consultants to start the process of establishing basic protocols etc.

17.

It was only after the start of this claim that Inco finally began to bring in consultants to address these issues. Today, a year later, protocols for both of these studies still have not been approved. With the partial information now available, it is estimated that at best the property valuation study might be completed by the end of this year, and the health study will not see completion until sometime in the year 2004.

18.

At the same time, Incos consultants who are organizing these studies have publicly confirmed that should these studies show health or property value impacts, neither the studies themselves or the CBRA process contains any mechanism for residents to be compensated for their losses. This alone, makes the CBRA process completely untenable as a method of resolving the problems Port Colborne faces today.

The Contaminants of Concern Issue 19. Further deficiencies even within the CBRA process itself are highlighted by the problems that have surrounded the identification, and subsequent investigation of the so-called Chemicals of Concern (the CoCs).

20.

First, as with many other areas of the CBRA process, there have been extremely lengthy delays in even identifying the CoCs. This issue still has not been fully resolved almost 2
6

years into the CBRA process.

21.

Even more importantly from the residents' perspective, in order to be identified as a CoC, a substance must (a) be a chemical used or released by one of Inco's processes, (b) be present in "the Community" at levels in excess of current government guidelines and (c) be scientifically linked to Inco.

22.

One of the many problems with the CBRAs generic approach (as opposed to a Site Specific Risk Assessment or SSRA) is that "the Community" is now defined as the whole of Port Colborne. Consequently, the chemical must be found in excess throughout a large portion of the entire community. If it is only found in one part of the City, despite the fact that it exceeds guidelines, it will not be studied or remediated under the CBRA process. This is what has happened with the contaminant lead.

23.

Elevated levels of lead have been found in the Rodney Street Community area. However, because the high levels of lead have not been found elsewhere in Port Colborne, the approximately 1,000 residents in the Rodney Street Community area have been told this is one of the reasons that lead is not being considered as a CoC at this time.

24.

The end result of the CBRA process is that where under an SSRA approach, at each of these contaminated sites further action would take place, at this time under the CBRA hundreds of residents have lost the opportunity to have the lead contamination on their property
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investigated and addressed.

25.

It is also interesting to note that while Inco denies any responsibility for the elevated levels of lead in Port Colborne, on October 26, 2000 at a public meeting Inco distributed materials (attached as Exhibit B) specifically identifying all 7 of the contaminates for which damages are now being claimed, including lead, as either constituent products, impurities or major reagents used or produced directly from the Refinery.

26.

It is also interesting to note that even if a chemical meets all of the criteria and assessments to qualify as a CoC, this is only the beginning of a very long, and very complex process. As the two diagrams attached as Exhibit C showing Phase 1 and Phase 2 of the CBRA process illustrate, it is bizarre to even suggest that the CBRA represents a no questions asked opportunity for remediation for the residents of Port Colborne.

The Public Liaison Committee Process 27. The Public Liaison Committee (PLC) is a group of 8 residents (now reduced to 7 after the resignation of a number of members and alternates), who have been appointed by the City of Port Colborne to represent the interests of the community in the CBRA process. None of the PLC members live in the most highly contaminated portion of the City, ie. the Rodney Street Community area. At the same time, in a process controlled by Inco and the MOE, the PLC is the only entity there to ensure that the interests of the communitys residents are respected and their needs are being met.
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28.

In general, the members of the committee are individuals who for the most part have worked diligently within the many limitations that the process imposes. However, almost two years into the process, through no fault of their own it is clear that the PLC has not been able to meet this objective.

29.

First, the PLC process has rarely been open and available to public input, as access to the Committee is limited to monthly or bi-monthly meetings held at City Hall. These meetings are usually restricted in time, and to discussions pertaining only to issues that the Committee Chairperson feels are necessary to discuss.

30.

Records are kept of the regular PLC meetings, and distributed to PLC members and City staff. However, as a community resident it wasn't until months after the public meetings at City Hall had started that I was able to obtain minutes to the previous meetings, as these were not made readily available to all residents, and in fact most residents didn't know the minutes were public information.

31.

In addition, I have asked repeatedly for documents, minutes, protocols etc, all discussed at these public meetings and identified as public information. I have had to contact City staff repeatedly, only to receive limited information or none at all. I have also made similar requests to the Chairman of the PLC for this public information, with the same results. In a process that claims it is open and available to all, this does not seem to have been the case.

32.

The PLC had also claimed it would keep the public informed and seek input from the community by way of a communication plan which would include "town hall" meetings held regularly, and out in the community at large. At such meetings, residents would be able to communicate their comments and concerns to the PLC. Since the start of the CBRA process, there has only been one such town hall meeting, and it was overshadowed by the MOE's March 2001 report and the errors it contained.

33.

It is also noteworthy that since the community organization Neighbours Helping Neighbours was formed, attendance at that groups meetings has consistently been at least twice that of PLC meetings. Neighbours Helping Neighbours meetings now regularly involve residents from the Rodney Street Community area, from elsewhere on the east side, from the west side of Port Colborne and from the surrounding rural/agricultural areas.

34.

Further, even more fundamental flaws exist in the actual functioning of the PLC/CBRA process. For example, under the CBRA, decisions made up until now have in fact almost always been made at the Technical Sub-Committee (TSC) level, where residents are only allowed to attend as "observers" with no ability to comment. These decisions, effectively already finalized at the TSC level, are then presented at a PLC meeting where the public is allowed to comment briefly. At this stage, it is almost impossible to challenge these decisions, as in most cases months of work has already taken place and PLC members who sit on the TSC and staff from Beak International (Beak, the PLCs technical consultants) have already committed to the proposal before it is even brought to the PLC. In most cases,
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the PLC simply approves the TSC recommendation with very little discussion or debate. In this way, the CBRA/PLC methodology has also resulted in the exclusion of most public opinion from the decision making process.

35.

Similarly, shortly after it was formed in May of 2000, the PLC was asked by the public not to conduct its business in a secretive way, and to keep their meetings and meetings with consultants open and transparent. The PLC voted against this approach, citing the need for private discussions and closed door sessions. In passing, it should be noted that this decision was made long before the commencement of any legal action regarding Port Colborne. However, this approach has also helped to ensure that most major decisions to date have reflected a limited amount of public input.

36.

It is also worth noting that Inco, it's CBRA consultants, the MOE, the PLC, and Beak have always been able to have private meetings without the public, interested residents or anyone else in attendance. Normally no minutes are kept at these meetings, and quite often the public is not even aware these meetings have taken place. Since the beginning of the CBRA process, many of these types of meetings have occurred with no public knowledge. This further adds to the publics concern that matters directly affecting residents futures are being decided without public input behind closed doors. It also highlights the fact that if any of these parties have had the desire to meet in confidence they have been able to do so freely, both before and after this claim was commenced.

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37.

The PLC has now acknowledged that these approaches were generally inappropriate, and within the past few weeks have attempted to revise their procedures somewhat to allow for more public consultation before major decisions are in fact finalized. At the same time, there is no way of undoing 2 years of decisions that have been made while the public has had a very limited role in the process, and there is no way of knowing if the proposed changes will correct any of these shortcomings.

38.

Finally, there have been and continue to be significant divisions within the PLC membership itself, and issues between various members of the PLC and members of the community, which make communication with individual committee members outside of PLC meetings problematic. This has also hampered the process from the outset.

The PLC and its Technical Advisors 39. From the start of the CBRA process, it has been evident that the types of issues that need to be resolved in Port Colborne would require a high level of scientific inquiry and expert analysis. In order to oversee this process and protect the communitys interests, it was expected that adequate technical expertise would be made available, either through or to the PLC. However, this is another area where significant concerns have arisen.

40.

The PLC members themselves have limited expertise in almost all of the areas that they are being asked to address. The Committee has stated many times that they are just ordinary citizens like the rest of the community, and are dependent to a large extent on their technical
12

advisors Beak.

41.

At the same time, Beak also has limited expertise in the areas that are of greatest concern to most residents, these being human health issues and property valuation issues.

42.

Beak promotes itself and appears to be quite well respected as an environmental specialist consulting firm. In this regard, Beak offers services and expertise in the areas of

environmental modeling, fisheries management, wildlife management, wetlands management, environmental reviews and permitting, water quality issues, threatened and endangered species, habitat conservation plans, forest management, and watershed analysis. This very much appears to be Beaks primary or core business.

43.

While Beak does indicate that it offers some environmental risk management services, a portion of which can address human health issues, the company appears to have been involved in a limited number of these types of projects relative to its primary ecology based business.

44.

This is also illustrated by the fact that of dozens of employees, until December 2001 Beak did not have any staff members with professional training in human health sciences, eg. doctors, human health risk assessors, human toxicologists, pediatricians etc.

45.

In December of 2001, Mr. Peter Nicholl, an industrial health and safety toxicologist was
13

hired. However, this is only one of many different health related disciplines that have been used by others to address the myriad of issues already raised in Port Colborne. Over the past almost two years, Beak has been the sole PLC/public advisor on matters involving the design and implementation of two major human health studies (one by Incos consultants and one by public health officials), the review of a lead study conducted by the local public health department, and the review of the MOEs ongoing human health risk assessments of the Rodney Street Community. Both then and now, many residents have expressed concerns about the qualifications and level of expertise in dealing with the wide range of health issues that must be addressed when these studies are being drafted or assessed.

46.

As one example, when the health departments lead study was released last summer, the PLC undertook a review of this document on the communitys behalf. One of the primary reviews then appeared to be conducted by the mother of one of the PLCs members. While it is believed that she is trained as a nurse, the fact that this was the best and highest level of expertise available to protect the interests of the entire community was quite disturbing to many. In light of the large body of specialized knowledge available to Inco, the MOE and others, its seems that much of what has occurred in relation to health issues in Port Colborne has proceeded without corresponding expertise being utilized on the communitys behalf.

47.

This same issue is also raised by the property valuation study that is currently being designed by Incos consultants, Deloitte and Touche Real Estate Services. Once again, the PLC and Beak are attempting to represent the interests of the community, but with no apparent
14

qualifications (ie. no qualified appraisers, valuators, brokers or other real estate experts). This also causes many residents to lose further confidence in the PLC/CBRA process.

48.

In addition, there have been concerns since the outset of Beaks involvement in the CBRA process resulting from the fact that Beak works extensively in the mining sector, for clients such as Falconbridge, Noranda and Stelco, all of whom have an interest and likely a very real concern about the implications of a CBRA decision that might require extensive remediation in Port Colborne. Questions have also been raised about Beak given their work history with Inco in the past, which was disclosed to the PLC but not entirely to residents. Concerns have also been expressed because of comments made by Jim Bishop (Beaks senior consultant in Port Colborne) in a case in which Mr. Bishop recently appeared as an expert witness for Inco, a copy of which is attached as Exhibit D. The fact that Inco ultimately pays all of the consultants involved in the CBRA process has also been a contentious and difficult issue for some residents to accept. All of this creates a real concern in the minds of many residents about the potential for bias.

Data Collected and Used in the CBRA 49. Concerns have also been raised by the public regarding the reliability of much of the data that has been collected and/or used as part of the CBRA process to date.

50.

One of the best examples would be the air monitoring issue, where outdoor air sampling done on farms and around area schools has twice been rejected by the PLC as not being
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sufficient, with sampling being done on days where conditions were unrealistically wet or where wind speeds and directions were not reflective of actual circumstances, and with other questionable techniques being used.

51.

However, despite the fact that the PLC has rejected this data, the MOE and Inco continue to make reference to it. This illustrates another significant problem in the CBRA process. As noted in the PLC Minutes of September 27, 2001, Ruth Kramer (a local resident) commented that it appears to her that the PLC has been left out of a lot of things. Harry Wells (Chairperson of the PLC) answered in the affirmative and added that certain things have closed doors and the PLC must ask for documents over and over again. Harry Wells added that the PLC finds it difficult to function within their means, time constraints, etc. and that the PLC has no outright authority, they are simply people, the public, as the audience are. While that evening Mr. Wells went on to indicate that administratively things were improving somewhat, the root problem has still remained.

52.

Mr. Wells and other members of the PLC have made similar comments on many other occasions. The fact that the PLC has no authority, and exists purely in an advisory capacity with no ability to do more than request that material be provided or that a certain course of action be followed, has meant that when the PLC does try to take the initiative to act on behalf of the community these attempts are frequently thwarted.

53.

Regarding indoor residential air sampling, this was not even considered until after the issue
16

was raised by the lawyers for the class action in May of 2001. Almost a full year later the CBRA process has still been unable to even put together a protocol for indoor sampling, let alone do any analysis of the risks people are being exposed to. It is also noteworthy that despite previous evidence last fall by Inco and the MOE that interior testing in the area north of Louis Street was urgently needed, none appears to have occurred. This type of testing should have been a high priority for the public agencies responsible for this area, to either relieve the community of its anxiety and concerns, or to allow a decision to be made to remove residents from what are still completely unknown levels of exposure.

54.

The MOE has also been attempting to collect more outdoor air monitoring data. However, there are numerous reasons why this data is now suspect. For one, the air monitoring samplers in the Rodney Street Community are located downwind of lands which recent testing has indicated are only slightly contaminated. At the same time, the monitors are located primarily upwind of all of the areas in the community where high levels of contamination have been found by the MOEs testing. As a result, these monitors are not assessing the air quality for residents living in this community.

55.

As well, the MOE's three air monitors in the Rodney Street area have been poorly maintained since they were placed in the community last summer. When the samplers were initially installed in late Spring/early Summer the hum from the motors could be heard, and usually once or twice every two weeks someone from the Ministry would come to check on the monitors and collect the samples.
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56.

By late August/early September 2001, it was quite evident that the monitors were not operational because, on a regular basis, no sound was coming from them at all.

57.

When I observed officials of the MOE at the ball park, I also observed that the samples collected were frequently mishandled. For example, no gloves were worn to remove filters, filters were dropped on the ground then picked up and transported to the MOE vehicle or put back into the monitor. I have not seen the use of any type of containment device or bag in which to put the filters once they were removed. I have also witnessed a Ministry official remove a filter that was very "dirty", walk back to the vehicle parked on the side of the road, then a few minutes later walk back to the monitor and put what appeared to be the same "dirty" filter back in, then leave.

58.

Another example of the poor maintenance of these units is the fact that the top portions of two of the three monitors have been missing since approximately the end of February of this year, and one monitor has been completely tipped over since the last week of March. Attached and marked as Exhibit E is a copy of a picture of the MOEs air monitors taken by myself on April 2, 2002.

59.

Soil data collected and used in the CBRA has also proven to be unreliable, to the detriment of the community. For example, as part of its sampling program conducted in the fall of 2000, the MOE sampled soil at the home of Mr. Bernie Sumbler at 87 Rodney Street. This testing revealed contamination as high as 6,200 ppm of nickel at this property. Given that
18

other properties in his area had tested considerably higher, Mr. Sumbler requested that the MOE re-test. Attached as Exhibit F is a copy of the MOEs re-sampling report dated July 24, 2001.

60.

As the new report shows, upon re-testing using a proper grid pattern (as would have been done had an SSRA of this property been conducted), levels at high as 11,000 ppm were discovered. This was quite important to Mr. Sumbler, as it would be to any resident, given that potential remediation is dependent on the levels of contamination found at each site. Here, as a result of proper re-sampling occurring, Mr. Sumbler has now become entitled to a clean-up pursuant to the MOE draft and final orders against Inco .

Enbridge Gas Problems 61. In the fall of 2000, Enbridge Gas installed a new gas line along certain streets in the Rodney Street Community, as the old lines needed to be replaced. At that time we were informed by the supervisor in charge that there were issues pertaining to the soil contamination in this area that Enbridge might not have been aware of. The new lines were then installed, but not connected to our homes because of recommendations to look into these issues further.

62.

In January of this year, I called and reported a natural gas smell that came from two houses west of mine. Upon further inspection, it was confirmed that the line was indeed damaged and leaking, and a crew was sent out to fix it. This damage may have occurred when Inco and Stevensville Lawn Services performed a "clean up" of the yard located at this home in
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the fall of 2001.

63.

A few days later, I again made a call to Enbridge to inform them that once again I could smell gas. At this time I had the opportunity to speak directly to the Supervisor of Operations, Mr. Henry Ostaszewicz, who informed me that the old line was probably deteriorating and should be replaced, but for now all they would do was repair the leak.

64.

On April 1,2002 we received a flyer in our mail stating that Enbridge "was switching over the existing gas service to the newly installed gas main".

65.

When the work crews arrived on April 2, 2002, an employee of Enbridge advised me that they wouldn't be able to install the line and connect the new meter on the opposite side of our house as had originally been planned. I inquired why this couldn't be done, and was told that there were issues with the soil contamination in this community and that Enbridge couldn't put their workers in a situation where they would be exposed to it. The workers had been specifically advised not to go under our home to connect a gas line to the new meter because of concerns about exposure to the soil under our home.

66.

It is quite discomforting to know that a service such as installing a new gas line for the safety of the community has been delayed because Enbridge will not allow their workers to be placed at risk even for a short period of time, yet the residents in this community are being exposed every day from either outside or inside their homes and the regulating officials
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repeatedly announce that there are no adverse health effects expected. It is equally disturbing to be told that public utilities workers are still being instructed by their employer to avoid doing any work under the home that my family and I are forced to continue to live in.

Costs of Metal Testing and Speciation 67. During the summer of 2001, many residents started checking levels of contamination both inside and outside of their homes. These samples were sent to an independent laboratory, prepared and then sent to an accredited laboratory for analysis consisting of an ICP metal scan. Costs associated with an ICP metal scan which will confirm the levels of contamination of the six metallic CoCs referred to in the class action, are approximately $80.00 per sample.

68.

It is also worth noting that in a number of cases, this type of testing has resulted in the detection of levels of contamination inside homes even higher than those detected in the soils outside. Attached and marked as ExhibitG is a copy of test results from 286 Davis Street dated July 17, 2001, showing levels of nickel found in attic dust of 17,500 ppm.

69.

I have also been advised by counsel for the plaintiff that now that laboratory methods and standards have been established, the cost for metal speciation using XAS techniques will be approximately $200 U.S. per sample submitted.

Precautions
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70.

On September 20, 2000, Mr. Al Kuja from the Standards Development Branch of the MOE left a message for my husband on the back of his business card, as we were not at home at the time. He stated that the Niagara Medical Officer of Health will be coming to see you about HIGH metal levels in your front lawn (emphasis in original). Mr. Kuja had come to our property on June 8, 2000 to collect soil samples from our yard, as we had volunteered to have our property tested at a previous public meeting.

71.

Later in the day on September 20, 2000, Mr. Dave Young from the Niagara Regional Public Health Department informed my husband and myself of the high levels of contamination that were found in our front yard, and provided us with a chart showing what the levels were and at what depth, a copy of which is attached as Exhibit H.

72.

Mr. Young verbally advised us to keep the children away from any open and exposed soil on our property and to make sure we washed the children's hands before eating as that was one way that a child could ingest contaminants. We were also advised to wipe the paws of our cat and dog before they came in the house, and to brush them outside. The general recommendations were, "just try to keep as much of the dirt and soil outside of your home and not track it inside."

73.

Mr. Young was also quite concerned about the high lead levels found in our front yard when he found out that we have two young children (who at the time were 8 and 3 years of age) and he again stressed to keep as much of the dirt outside as possible. This is the extent of the
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warnings we received directly from the health department about reducing our exposures to these contaminants.

74.

On February 15, 2001, the MOE provided the community with a written update of the Ministry's progress concerning the additional samples taken in the Rodney St. community and a human health risk assessment, a copy of which is attached as Exhibit I. Included with this correspondence was a one page flyer entitled, "High levels of nickel have been found in the soil on my property", from the Regional Niagara Public Health Department with ways to limit exposure to the soil, attached as Exhibit J. Of the seven precautions listed, our family continues to try to follow each of them as a part of our daily routines.

Raising Our Children in this Environment 75. I am a stay-at-home mother raising two boys, Eric who is 10 years old and Andrew who is 5. As a parent I believe in nurturing children so they will respect themselves and the environment around them. I have tried to teach my children to appreciate what has been given to them, as there are so many others who are less fortunate. I have tried to teach them what is right and wrong and how to deal with circumstances they might experience in their childhood, in the hope that it carries on through adulthood. But, one of the most important things that I've stressed to both my children is that they are free to enjoy their childhoods and everything that it has to offer, and to not grow up too fast. In the last couple years, it's been more difficult to say that to them and still have the same meaning. 76. Since the MOE, Inco, the City of Port Colborne and Public Health Department knew, or
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should have known about the environmental problems associated with the Refinery for many decades past, I find it very disturbing that no one from these agencies had the courage to inform the public about these problems, and to properly look many years ago into the risks and hazards that we have all been exposed to.

77.

In our familys case, we bought a house and have lived on Rodney St. for the last 11 years, and this is where our children have been raised. I have always encouraged my children to help me in our gardens. I have always enjoyed watching them play with their trucks and cars, making roads and bridges in the soil on our property thinking some day they might wish to be engineers. We have had numerous rounds of baseball, catch or frisbee in the backyard just for fun and exercise. On a warm summer day we would spend it at the ball park to see if we could get the kite to the end of the spool of string.

78.

Now their play areas are restricted, the ball park is chained shut, they can't explore their world without barriers, they can't be children enjoying the surroundings of their own home, whether it be inside or out.

79.

No one warned us about the risks associated with the soil and air in our community, even when Inco purchased the empty lot behind our home after a re-zoning application was quietly withdrawn in April, 1994. Inco knew residents living on the south side of Rodney St. were using that field and maintaining it during the summer months, but no one thought to advise us the property might be contaminated and what we might be exposed to. The City of Port
24

Colborne, specifically the planning department, and the MOE also knew or ought to have known the characteristics within this community, but neither thought to inform the public.

80.

As a resident of Port Colborne and more specifically of the Rodney Street Community, I feel personally violated by those in which we trusted to protect our environment and our health and safety. As a mother watching her young children grow, I am sickened, and at a loss for words to explain the feeling of not knowing what the future outcomes will be for my children.

The CBRA as the Answer? 81. As the majority of the residents have expressed throughout the CBRA process, the credibility and integrity of Inco, the MOE, the City of Port Colborne and the Public Health Department has been lost by their actions, or lack of action, and is not likely to be regained.

82.

There is a deep level of distrust and resentment towards the agencies responsible for not disclosing to the residents the extent of the issues we are now faced with. Yet these are the same entities and agencies that completely control and have authority over the CBRA process. Inco is the acknowledged polluter. Serious allegations of negligence have been made against the MOE, the City and Public Health Department that have yet to be adjudicated on by a Court. However, residents are being told that those claims should never be decided by a judge, but instead, these very same parties should be trusted implicitly to provide all of the answers for our community through a CBRA process alone.

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83.

Aside from all of the other problems with the CBRA already noted above, this process involves no independent adjudication, no right or even a mechanism to claim compensation, and no forum for any disagreement with the final decision in the process to be resolved. In the end, the entire CBRA process will only result in a single outcome, a clean-up number, and then the possibility of some type of remediation, in a form that the property owner will not even have a choice in selecting. For these and many other reasons, the CBRA process alone is not the answer to the situation here in this community.

84.

As the following excerpts from PLC Minutes show, this fact has even been recognized by members of the PLC, the MOE and Inco:

November 23, 2000 Paul Dayboll questioned the options for people that do not want to be involved in the CBRA process. Dave McLauglin advised that no one will be forced to use the CBRA, any resident that owns property affected by Inco could go to Inco at this moment and ask them to do a SSRA. Paul Nieweglowski advised that the guidelines were developed originally for remediating specific sites and were not developed for a wide range of properties. The property owner could go to the MOE and request remediation and the MOE would go to Inco and advise they want the property cleaned up. Should Inco refuse, litigation would be required.

November 30, 2000 Harry Wells added that everybody has the right to go on their own, they do not need to be a part of this process, the TSOW (Technical Scope of Work) is not signed by anyone and is not legally binding.

November 9, 2000 Neale Kramer questioned whether there will be any compensation for those property owners that have a stigma attached to their properties as a result of contamination. Dr. Conard advised he is not the correct person to ask questions of regarding compensation for injury or loss. Those are questions that need to be considered under circumstances, are of legal
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substance and since compensation is a legal issue, it will not be a part of the CBRA.

85.

Over the last two years, a great deal has come to light regarding the conduct of public authorities and Inco, and the losses and damages that residents of Port Colborne have suffered. Whether or not these losses are attributable to Inco, the MOE, the City or others, and what if any compensation residents should receive are very important issues, but issues that will not be considered or resolved under the CBRA process.

86.

The losses that we have incurred, even to date, are such that we cannot either on a financial or personal level accept that they should be completely ignored. A class action represents the best, most realistic option by which the many issues that the CBRA will not even touch on can be adjudicated and resolved, whatever that outcome may be.

87.

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

SWORN BEFORE ME at the City of Port Colborne, this 9th day of April, 2002

) ) ) ) ) ELLEN SMITH )

A commissioner etc.

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