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 ALLEN BALDWIN Sworn January 14, 2002 I, Allen Baldwin, of the City of Welland in the Regional Municipality of Niagara, MAKE OATH AND SAY:

1.

I am a former employee of Her Majesty the Queen in right of Ontario (HMQ), and most recently of the Ontario Ministry of the Environment (the MOE), 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 was employed by the Ontario government from 1969 to 1996. In 1969 myself and others established what (in 1971) became the MOEs area office in Welland, Ontario. During my career with the MOE, I was the Senior Abatement Officer and then the Enforcement Officer with direct responsibility for

overseeing the operation of Incos Port Colborne refinery (the Refinery).

3.

As a result, I am familiar with the policies, operations and procedures of the MOE as they pertained to the Refinery. I also personally performed numerous inspections of the Refinery, and I am directly familiar with the Refinerys operations for a period of more than 25 years. Attached and marked as Exhibit A is a copy of my curriculum vitae.

Incos Port Colborne Refinery 4. Since at least 1959, HMQ has been involved in matters concerning contamination caused by the Refinery in Port Colborne, initially through the Ontario Department of Mines, the Ontario Department of Agriculture, the Ontario Department of Health, and since 1971 through the Ontario Ministry of the Environment.

5.

In 1959 and 1960, representatives from the Department of Mines, the Department of Agriculture and the Department of Health took detailed measurements of heavy metal concentrations (Nickel, Copper, Iron) in the dustfall, suspended particulate matter, soil and vegetation in the area North East of the Refinery, and conducted further experiments.

6.

When I began my employment with HMQ in 1969, there was in place a policy of inspecting industries in the Niagara area, including the Refinery. It became HMQs operational practice to attempt to inspect the refinery on a regular basis, which at times could be as often as once per week, or even more frequently when detailed investigations were taking place. As a result, since 1969, hundreds of inspections of the Refinery have been performed by HMQ.

7.

One of the purpose of these inspections was to detect defects or deficiencies at the Refinery in order to protect the property and health of members of the proposed class (Class Members). Results of these

inspections were also made available to Class Members.

8.

Starting in 1971, HMQ initiated a policy of issuing Certificates of Approval related to the Refinery. This policy was developed in order to meet HMQs legislative power at the time to issue Certificates of Approval pursuant to Section 7 of the Air Pollution Control Act, S.O. 1967, c. 2. Since 1971, more than 70 Certificates of Approval have been issued by HMQ in relation to operational activities at the Refinery.

9.

One of the purposes of issuing Certificates of Approval was to protect the property and health of Class Members.

10.

HMQ also knew or ought to have known that a lack of sufficient care on the part of HMQ would cause damage to Class Members.

11.

In addition, starting in the 1970's HMQ initiated a policy of studying the contamination on lands owned or occupied by residents of Port Colborne, and investigating complaints about the Refinery from residents of Port Colborne.

12.

In 1972, it became HMQs operational practice to conduct an annual, detailed survey of contamination on lands owned or occupied by residents of Port Colborne, and to investigate complaints about the Refinery made by residents of Port Colborne. In 1973, it became HMQs operational practice to conduct a regular ambient air sampling program for suspended particulate contamination on residents of Port Colbornes lands. As a result of these programs, surveys and investigations, since 1972 thousands of air, soil and water samples have been taken from residents of Port Colborne lands, and hundreds of pages of studies and reports have been generated by HMQ.
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13.

One of the purposes of these programs, surveys and investigations was to protect the property and health of Class Members. Results of these programs, surveys and investigations were also made available or reported to Class Members.

14.

HMQ also knew or ought to have known that a lack of sufficient care on the part of HMQ would cause damage to Class Members.

15.

Attached and marked as Exhibit B is a copy of a report entitled Progress Report on Survey Concerning Vegetation Damage in Humberstone Township (May 1 - October 31, 1960), prepared by the Air Pollution Control Branch of the Ontario Ministry of Health, the Sulphur Fumes Arbitrator of the Ontario Department of Mines and the Ontario Agricultural College of the Ontario Department of Agriculture received from counsel for the plaintiff.

16.

Attached and marked as Exhibit C is a copy of an MOE report entitled Phytotoxicology Investigations INCO, Port Colborne 1969-1974, dated July 7, 1975 received from counsel for the plaintiff.

17.

Attached and marked as Exhibit D is a copy of an MOE Report entitled Status Report on International Nickel Company Port Colborne, Ontario (undated), authored by myself and reviewed by Inco prior to being presented to HMQ in its final form in or about 1980, received from counsel for the plaintiff.

18.

I make this affidavit in support of the plaintiffs motion for certification and for no improper purpose.
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SWORN BEFORE ME at the City of Welland, this 14th day of January, 2002

) ) ) ) ) ALLEN

BALDWIN ) A commissioner etc. )