Vous êtes sur la page 1sur 15

BETWEEN:

Court File No.: 12023/01

ONTARIO SUPERIOR COURT OF JUSTICE

WILFRED ROBERT PEARSON

-and-

Plaintiff

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 KAL HANIFF

I, KAL HANIFF, of the Town of Oakville, Province of Ontario, make oath and say as follows:

1. I am the Regional Director for the West Central Region of the Ontario Ministry of the Environment

(“MOE”), a Region which extends over much of southwestern Ontario and includes the City of Port

Colborne. I have held this position since June, 1999. As Director, I am the person responsible for

overseeing the administration of the

Environmental Protection Act within the Region.

More

2

particularly, I am the Director responsible for issuing environmental remediation orders in relation to

historic contamination originating from the refinery of Inco Ltd. (“Inco”) in Port Colborne. As well, I am

the Director who accepted Inco’s proposal to undertake a Community Based Risk Assessment

(“CBRA”) and my staff from the Niagara District Office of the MOE, including the District Manager,

Paul Nieweglowski, regularly participate in that process and report to me concerning its progress. In

total, I have been an employee of the MOE for 24 years. A copy of my curriculum vitae is attached

hereto as Exhibit A.

2. Based on the above, I have knowledge of the matters to which I hereinafter depose, except where I have

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

Community Based Risk Assessment

3. In 1996, municipalities assumed from the MOE responsibility for reviewing and approving all proposals

for land development and property rezoning. The City of Port Colborne approached both the MOE and

Inco for advice as to how to deal with the numerous properties in the city containing elevated levels of

nickel, copper and cobalt.

4. Also in 1996, the MOE published the “Guidelines for Use at Contaminated Sites in Ontario” to help

owners of contaminated property clean up the soil so that the property could be redeveloped for

alternative land uses. The Guidelines describe three approaches for cleaning up contaminated soil. The

3

approaches are: 1) background, 2) generic and 3) site specific risk assessment (SSRA).

5. The background approach involves the use of soil guidelines to restore the site to natural background

conditions. Table F of the decommissioning guidelines outlines background concentrations using Ontario

Typical Range values.

6. The generic approach involves the use of soil guidelines that have been developed to protect human

health and the natural environment (Tables A- D of the Guidelines). The generic- effects based guidelines

are set to protect the most sensitive of plants, soil and aquatic organisms and human health anywhere in

Ontario, while eliminating the need for MOE review and approval.

7. The SSRA approach does not use a list of established soil guidelines. Instead, the property owner

obtains the services of a qualified consultant to develop risk-based soil guidelines that are specific to and

can only be used to remediate a specific contaminated property. Because it is specific to one site, it is

called a site specific risk assessment.

Generally speaking, property owners who clean up their

contaminated soil using the background or the generic effects-based soil guidelines do not require

Ministry approval. However, if an SSRA approach is used, the property owner must submit the SSRA

approach to a third party independent reviewer and then the proposal must be submitted to the Ministry

for approval.

4

number of properties with elevated levels of nickel, copper and cobalt. As a practical matter, individual

site specific risk assessments in the affected areas could take decades to complete, obtain MOE

approval and then implement.

9. Accordingly, in considering possible alternatives, discussions among the City, the MOE and Inco in 1998

and 1999 led to the proposal by Inco of a community based risk assessment (CBRA) approach.

10. The CBRA is a voluntary community-wide risk assessment which considers site specific scientific data

pertinent to the Port Colborne area. The CBRA was endorsed by the City of Port Colborne through

council resolution in March 2000 and the PLC approved the scope of works for the CBRA on

November 30, 2000. The City Council then adopted the scope of works by resolution on December

18, 2000. On January 12, 2001, the MOE sent the PLC a letter formally endorsing the CBRA scope of

works.

11. Inco is undertaking the CBRA using the MOE’s 1997 decommissioning guidelines as a template. Under

the CBRA approach, Inco has agreed to remediate properties according to the findings of the CBRA

and the development of specific procedures as part of the CBRA. In May 2000, Inco retained Jacques

Whitford Environment Limited to develop the specific aspects of the CBRA in consultation with the City

and the MOE. The public is also involved in the process through a Public Liaison Committee (“PLC”)

appointed by the City Council.

5

12. Inco is funding the costs of the CBRA process. Inco has also agreed to fund the cost of a separate

socio-economic study to be carried out at the same time as the CBRA. Once the CBRA model is

developed, based on the results of ongoing sampling and analysis, the remediation phase will begin.

Suitable remediation, if and where called for, will depend on individual property characteristics. It might

consist of, for example, the addition of substances to existing soil to stabilize soil conditions, the use of

certain vegetation that naturally absorb nickel from soil or the removal of soil. Prior to the initiation of this

lawsuit, it was hoped that the development of the CBRA might be completed in 2002, with remediation,

if and where called for, to begin thereafter.

Authority for Directors Order

13. Under the Environmental Protection Act, the Director has the authority to issue orders of various

types. Section 17 of the Act provides that:

Where any person causes or permits the discharge of a contaminant into the natural environment, so that land, water, property, animal life, plant life, or human health or safety is injured, damaged or endangered, or is likely to be injured, damaged or endangered, the Director may order the person to,

1. repair the injury or damage;

2. prevent the injury or damage; or

3. where the discharge has damaged or endangered or is likely to damage or endanger existing water supplies, provide alternate water supplies.

6

occupies or has the charge, management or control of the place to permit access to the place for the

purpose of doing the thing in question.

15. A Directors Order must be based upon evidence, and it is typically preceded by a Provincial

Officers Report, or an expert report or survey of some kind, which establishes that the evidentiary

precondition of the Order provision relied upon has been met (usually, that there exists an adverse effect or

risk of an adverse effect).

16. Once the necessary evidence is in place, as the first step in issuing an Order under the Act, the Director

will issue a Notice of Proposed Order along with a draft Order to the person being ordered, also known

as the “Orderee”. The Notice of Proposed Order provides for written submissions to be made to the

Director within 15 days after the date of the service of the Notice. The Notice of Proposed Order with

the attached Draft Order is also posted on the EBR for a 30 day public review period. The public and

interested stakeholders, including the Orderee, then have 30 days in which to comment on the draft Order

and the evidence which underlies it. As the law has been explained to me over the years by legal counsel,

the Director has an obligation, at common law, to consider the comments received, but is not obliged to

agree with them or make any changes to the draft Order as a result of them.

17. Once the 30 days have expired and the Director is satisfied with the form of the draft Order, the Order

is issued in final form. The Orderee then has 15 days under the provisions of the Act in which to appeal

the Order to the Environmental Review Tribunal. By virtue of the provisions of the Environmental Bill of

7

Rights, affected members of the public also have 15 days from the issuance of the finalized Order to seek

leave to appeal the Order if they are dissatisfied with the Order legally, factually or environmentally.

18. The Environmental Review Tribunal (“ERT” or “Board”) is an expert tribunal which stands in the

shoes of the Director. Upon appeal by the Orderee or members of the public, the ERT holds a new

hearing in which it has jurisdiction to examine every issue of fact and law which the Director was capable

of examining. The Boards decision can completely replace the decision of Director, in whole or in part.

The Board holds a formal, statutory hearing in which any interested persons may be made parties. The

parties are represented by lawyers, can present factual and expert evidence and can make full legal

argument. The Board has its own rules of procedure and operates in accordance with the Statutory

Powers Procedure Act.

19. I have been advised by MOE legal counsel, Jack Coop, that the expertise of the ERT has been

commented on by the courts on numerous occasions. The Board recruits its members from a variety of

scientific and environmental disciplines. This allows the Board to provide a high level of expert adjudication

on the extent of environmental cleanup necessary to prevent adverse effects as defined under the Act.

20. Any party may appeal the Boards decision to the Divisional Court on a question of law and to the

Minister on a question of fact or policy.

March 2001, Draft Order

8

21. In March 2001, the Standards Development Branch of the MOE released its “Soil Investigation and

Human Health Risk Assessment for the Rodney Street Community: Port Colborne (2001)” (the “March

2001 HHRA”). This is detailed in the Affidavit of Jim Smith, sworn March 28, 2002.

22. Based upon the March 2001 HHRA, I determined that there was an evidentiary basis for concluding

that Inco, through the operation of its refinery in Port Colborne, had discharged contaminants into the

natural environment which posed a risk to human health for some residents in the Rodney Street

community of Port Colborne.

23. As a result, on March 28, 2001, I issued to Inco a Notice of Proposed Order with an attached draft

Order under the EPA. The draft Order was also provided to the public by posting on the Environmental

Bill of Rights internet Registry. Both Inco and the public were invited to comment on the draft Order.

24. Using the intervention level established through the March 2001 HHRA of 10,000 ppm nickel in soil,

the draft Order required that Inco develop and implement a plan for the remediation of the 16 properties in

the Rodney Street Area that were contaminated with nickel in excess of 10,000ppm. The draft Order also

required Inco to carry out additional testing north of the area that had previously been tested. A copy of

this March 2001 draft Order is found as Exhibit B to this Affidavit.

25. During the 30-day period in which submissions were received regarding the draft Order, I received

9

four submissions with respect to the draft Order.

These submissions were from Inco, Dr. Mark

Richardson (the plaintiff’s expert), Mr. Eric Gillespie of Daoust Vukovich Baker-Sigal Banka LLP and

Ms. Ellen Smith, one the residents of the Rodney St. Community.

26. Once the MOE concluded that an error had been made in calculating the intervention level in the

March 2001 HHRA, the Notice of Proposed Order was suspended until further reassessments could be

made.

27. Despite the draft Order not being finalized, Inco attempted to voluntarily undertake the remediation and

testing activities specified in the draft Order. However, I am advised by Paul Nieweglowski that Incos

efforts to undertake the remediation were not successful due to property access issues, namely, the

opposition of affected residents, led by plaintiffs counsel Eric Gillespie. Thus far, only 5 properties have

been remediated due to access prohibitions.

October 2001, Draft Order

28. To address the calculation error contained in the March 2001 HHRA and expert comments received

from Inco and the public on the report, the MOE prepared a revised “Soil Investigation and Human Health

Risk Assessment Report”, the draft of which was released on October 30, 2001 (the “October 2001

HHRA”). This Report concluded that the appropriate intervention level for soil nickel was 8,000 ppm.

10

29. Based upon the October 2001 HHRA, on October 30, 2001, I served upon Inco another Notice of

Proposed Order with an attached draft Order. The draft Order and the October 2001 HHRA were made

available for public comment on the EBR Registry. The draft Order proposed similar requirements for

remediation and investigation as were proposed in the draft Order of March 2001.

30. However, because of the new intervention level of 8,000 ppm, the October 2001, draft Order

proposed that Inco remediate an increased number of properties – 25 in total. A copy of the October

2001 draft Order is found as Exhibit C to this Affidavit.

31. Since the Notice of Proposed Order with the attached draft Order was issued on October 30, 2001,

the MOE has received 2 submissions which apply directly to the draft Order. These submissions were

considered in finalizing the Directors Order.

March 2002 Order

32. On March 28, 2002, both the October 2001 draft Order and the October 2001 HHRA were

finalized, made publicly available, and served upon Inco. A copy of the March 2002 Order is attached as

Exhibit D to this Affidavit.

33. The March 2002 Order maintains the 8,000 ppm nickel soil intervention level of the preceding draft.

Given that Inco has already remediated five properties on a voluntary basis in accordance with the first

11

draft of this Order, only 20 properties within the Rodney Street community remain to be remediated under

the March 2002 Order.

Effect of the March 2002 Order

34. Like its draft predecessors, the March 2002 Order not only requires Inco to conduct an immediate

cleanup of the 20 remaining properties in the Rodney Street community which are at or exceed 8,000 ppm

nickel soil levels, it also requires Inco to do additional sampling and to propose and carry out remediation

of any properties which are found to be at or exceeding 8,000 ppm nickel soil levels.

35. The Order defines the Rodney Street Area as the lands in the City of Port Colborne located

between Louis Street on the north, Lake Erie on the south, Welland Street on the west and Davis Street

on the east. It also defines the Surrounding Area as the lands in the City of Port Colborne other than the

Rodney Street Area.

36. The Order requires Inco to prepare a Remediation Plan for the remediation of lands in the Rodney

Street Area and Surrounding Area that are contaminated with nickel at or in excess of a dry weight

concentration of 8,000 ppm.

37. It further requires Inco to submit the Remediation Plan to me by May 1, 2002, for my approval.

12

38. The Order is intended to complement the Community Based Risk Assessment (CBRA) process. It is

aimed at quickly eliminating all significant, identified, risks of human health impacts in Port Colborne which

could result from soil contamination resulting from Incos historic operations.

39. Plant and other impacts will be addressed under the CBRA process.

40. In order to complement the CBRA process, I anticipate the Order will be carried out in two stages.

The first stage, involving principally the Rodney Street Area, will be carried out by the summer of this year,

reflecting the fact that the 25 properties of the Rodney Street Area having 8,000 ppm or more of nickel in

their soil have already been identified by the Ministry. As well, Inco has undertaken additional sampling

north of Louis Street (an area immediately to the north of the Rodney Street Area). If the results show

properties at or exceeding 8,000 ppm nickel in the soil, then Inco will be required to remediate these

properties as well by this summer.

41. The second stage, involving the balance of Port Colborne, will be carried out over the longer term

through the human health risk assessment which will be conducted by Inco under the CBRA process.

42. I anticipate that the Remediation Plan under the Order will reflect such a staged approach.

43. All evidence to date suggests that soil nickel levels at or exceeding of 8,000 ppm are confined to the

Rodney Street Area. Therefore, it is unlikely that the second stage of remediation will find other properties

13

in Port Colborne with such elevated levels. However, it will only be through the site by site evaluation

under the CBRA process that these facts can be ascertained.

Continued Role of Public

44. The current Order is the final version of the draft Order which I circulated to the community, the Public

Liaison Committee, and posted on the Environmental Bill of Rights Registry on October 30, 2001, for

public comment.

45. However, affected and potentially affected residents have not yet had an opportunity to comment to

me on the specifics of Incos Remediation Plan, which must be submitted to me by May 1, 2002.

46. After the initial draft Order was served on Inco one year ago, Inco prepared a “Voluntary Remediation

Plan” in which it set out detailed protocols on how it proposed to conduct the clean up of properties in the

Rodney Street Area. The Ministry reviewed that Plan, and generally found it to be acceptable.

47. I am aware that some Rodney Street Area residents, and their lawyers and experts, have already seen

the Voluntary Remediation Plan and have had extensive discussions with Inco about it. It is likely the new

Remediation Plan will be similar to the earlier one. However, all affected residents will be afforded an

opportunity to provide me with their comments on the Remediation Plan before I make a decision under

the Order on whether to approve it.

14

48. I am therefore requiring Inco to provide a copy of the Remediation Plan by May 1, 2002, at the latest,

to every affected residence of the Rodney Street Area and the area north of Louis Street (ie. all properties

having 8,000 ppm or more of nickel in the soil). The residents living on those properties will have a two

week period from the date they receive the Remediation Plan to provide me with their written comments.

49. I will review and consider the submissions in deciding whether to approve Incos Remediation Plan.

50. Under the second stage of implementation of the Order, I expect Inco will identify any other properties

in the Port Colborne “Surrounding Area” (that is, properties outside the Rodney Street Area) having

8,000 ppm or more of nickel in the soil - if there are any - through its investigations under the CBRA

program. Once those properties are identified, then Inco will similarly serve the affected properties with

the Remediation Plan. Residents living on those properties will then have a two week period in which to

make submissions to me concerning the Remediation Plan. Based on current projections, I expect this

may occur sometime in the late fall of 2002.

51. At that time, I will reconsider my approval decision concerning the Remediation Plan for these

additional properties, based upon any submissions I receive.

15

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 28 th day of March 2002.

)

A Commissioner, etc.

KAL HANIFF