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 DR. THOMAS BURNETT Sworn January 15, 2002

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

1.

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

Background and Qualifications

2.

I hold a Ph.D. in chemical engineering. I was employed by Inco Limited (Inco) for 28 years. I was the former Director of Environmental Affairs for Inco worldwide. I am familiar with most aspects of nickel mining and refining practices, and with Incos operations worldwide, including Port Colborne. Attached and marked as Exhibit A is a copy of my curriculum vitae.

Incos Port Colborne Refinery 3. Incos Port Colborne facilities (the Refinery) were constructed beginning in 1918 on approximately 500 acres of land. Attached and marked as Exhibit B are excerpts from The Winning of Nickel, an 487 page book commissioned by Inco to commemorate Canadas centennial in 1967. Attached and marked as Exhibit C are excerpts from Nickel: An Historical Review. These excerpts describe the Refinery, and illustrate the basic systems and processes used for large scale electrolytic nickel production at the Refinery.

4.

In addition to a nickel refining operation, the Refinery also housed one of the largest nickel processing research and development stations in the world. This facility occupied many acres of the site, and new processes were constantly being developed and tested on a largescale operating plant size basis.

5.

In my capacity, first as a Process Control Engineer, then as Manager (Process Services) and then as Manager (Process Sales), between 1970 and 1989 I had occasion to visit the Refinery on average approximately once per month. As a result, I became very familiar with both the
2

refining, and the research and development operations at the Refinery.

6.

Since the Refinery opened, it has produced an average of approximately 15 million pounds (1918) to 200 million pounds (early 1950's) of nickel per year. At times the Refinery has employed up to 2,600 workers.

7.

In 1984 the scale of operations at the Refinery was reduced and the Refinery ceased to process nickel. However, today the Refinery still continues to operate, processing cobalt and precious metals.

8.

Since it began operation, the Refinery has continuously emitted toxic, noxious, dangerous and hazardous substances into the natural environment, including the air, water and soil of Port Colborne. These contaminants have included oxidic, sulphidic and soluble inorganic nickel compounds, copper, cobalt, chlorine, arsenic, zinc and lead (the Contaminants of Concern).

9.

Many of the Contaminants of Concern are toxic and/or known human carcinogens. All of the Contaminants of Concern are still being emitted from the Refinery. Attached and marked as Exhibit D is a copy of data obtained from the National Pollution Registry Inventory (NPRI) showing recent levels of emissions from the Refinery site. In addition to direct emissions from ongoing production processes, these contaminants are also migrating from the site as waste products through re-entrainment in air, soil and water.

10.

The Contaminants of Concern (with the exception of chlorine, which is emitted as a gas and thus dissipates) can now be found on lands owned, occupied or used by members of the proposed class (Class Members), in quantities well above the Guidelines established by the Ontario government for these substances.

Nickel Oxide and Other Contaminants in Port Colborne 11. The most common contaminant found today in Port Colborne is nickel. Testing by both the Ontario government and Inco has indicated that most, if not all the nickel in Port Colborne is likely nickel oxide.

12.

The plaintiff has also undertaken testing in order to confirm that the nickel in Port Colborne is in fact nickel oxide. Attached and marked as Exhibit E is a Summary of X-Ray Absorption Spectroscopy (XAS) Metal Speciation Testing in Port Colborne. Attached and marked as Exhibit F is a copy of an XAS analysis report of Port Colborne soil samples by Dr. Dean Hesterberg and Dr. Kumi Pandya of the Soil Sciences and Physics Departments of North Carolina State University prepared on behalf of the plaintiff.

13.

Nickel oxide has been specifically classified by the Government of Canada as a Group One Carcinogenic to Humans toxic substance, meaning that Health Canada has conclusively determined that there is a direct causal relationship between exposure to nickel oxide and cancer in humans, and that the risk of cancer exists at any level of exposure. Attached and

marked as Exhibit G is a copy of the Priority Substances List Assessment Report entitled Nickel and its Compounds, prepared pursuant to the Canadian Environmental Protection Act by Health Canada and Environment Canada.

14.

Based on my knowledge of production rates and the refining methods and practices in use at the Refinery, I would estimate that more than 20,000 tonnes of nickel oxide has been spread over the area inhabited by Class Members.

15.

At the same time, as noted above, other contaminants in addition to nickel oxide were escaping throughout the time that the Refinery has operated. For example, it is estimated that up to 1,000 tonnes of lead may have also been deposited on Class Members lands by Inco.

The Operation of the Refinery 16. Much of the reason for the release of contaminants (ie. the Contaminants of Concern) from the Refinery stems from the acts or decisions of Inco regarding the way that the Refinery was designed, operated and maintained.

17.

For example, Inco has historically polluted and continues to pollute in Port Colborne. However, the effects of this pollution could have been mitigated to some extent by the use of chimneys or stacks. The use of stacks has proven to be one of the most basic methods of allowing substances to be emitted into the air by industry while at least reducing impacts on surrounding lands and populations to some degree.

18.

The Refinery, however, appears to have operated from 1918 to 1936 without any major stack. Stacks were widely in use, both in general industry and in refineries for years before one was installed in Port Colborne. As a result of not operating with a proper stack, lands near the Refinery were subjected to even higher deposits of the Contaminants of Concern than they have been in recent times. While contaminants released from Inco since 1936 have still continued to cause widespread damage, the effects of early emissions from Inco could have been reduced had an adequate stack been installed when the facility was first constructed.

19.

Electrostatic Precipitators (also known as Cottrell Precipitators) have proven to be a highly effective method of controlling the amount of contamination entering a stack system. When properly operated and maintained, an Electrostatic Precipitator can remove up to 99.9% of all particulate matter from exhaust gases produced by industrial processes.

20.

The Electrostatic Precipitator was patented in 1907. This technology was widely in use in industry, including the metallurgical industry, by the early 1920's. Inco did not install an Electrostatic Precipitator in Port Colborne until 1960.

21.

As a result, from 1938 (when records were first kept) to 1960 (when the Electrostatic Precipitator was installed at the Refinery), by Incos own estimates between 190,000 pounds and 770,000 pounds each year of nickel (now known to likely be almost entirely nickel

oxide) was deposited on Class Members lands. Once the Electrostatic Precipitator was installed, emissions dropped to approximately 12,000 pounds per year (a 94% to 99% reduction) almost immediately.

22.

These examples illustrate shortcomings at the Refinery. The failure to use available technologies in the handling and processing of feed materials in the Refinery allowed high levels of materials to escape and contaminate properties owned by Class Members throughout the time that the Refinery has operated.

23.

I make this affidavit in support of the plaintiffs motion for certification and for no improper purpose.

SWORN BEFORE ME at the City of Toronto, this 15th day of January, 2002

) ) ) ) )

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