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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 WOLFGANG KAUFMANN Sworn January 16, 2002

I, WOLFGANG KAUFMANN, of the Town of Whitby, in the Region of Durham, MAKE OATH AND SAY:

1.

I am a partner with the law firm Daoust Vukovich Baker-Sigal Banka LLP, solicitors for the plaintiff, 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.

A. DEFINITION AND SIZE OF THE PROPOSED CLASS 2. As set out in paragraph 10 of the fresh as amended statement of claim, the proposed class is defined as follows: A. All persons owning or occupying property since March 26, 1995 within the area of the City of Port Colborne bounded by Lake Erie to the south, Neff Road/Michael Road to the east, Third Concession to the north and Cement Road/Main Street West/Hwy 58 to the west, or where such a person is deceased, the heir(s), executor(s), administrator(s), assign(s) or personal representative(s) of the estate of the deceased person; B. All students attending schools operated by the District School Board of Niagara or the Niagara Catholic District School Board since March 26, 1995 within the area of the City of Port Colborne bounded by Lake Erie to the south, Neff Road/Michael Road to the east, Third Concession to the north and Cement Road/Main Street West/Hwy 58 to the west, or where such a person is deceased, the heir(s), executor(s), administrator(s), assign(s) or personal representative(s) of the estate of the deceased person; and C. All living parents, grandparents, children, grandchildren, siblings, and spouses (within the meaning of Section 61 of the Family Law Act) of persons defined in paragraphs A and B above, or where such a family member has died thereafter, the heir(s), executor(s), administrator(s), assign(s) or personal representative(s) of the estate of the deceased person (hereinafter referred to as Class Members or the Class).
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3.

The boundaries of the Class represent the approximate boundaries of the City of Port Colborne. Elevated levels of nickel contamination above Ontario background levels (MOE Table F Guidelines) have been found throughout the entire area defined by the Class. Elevated levels of nickel contamination above MOE Table A Guidelines have also been found throughout large portions of the area defined by the Class.

4.

The current population of Port Colborne is estimated at 18,500. Approximately 17,000 individuals reside within the boundaries defined by the Class. In addition, the Class would also include former residents of Port Colborne who lived in the community after March 26, 1995, but have since moved away. It would also include owners of property within the geographic boundaries set out above, students and former students, and Family Law Act claimants, some of whom may not live within the City of Port Colborne. Consequently, the total number of Class Members is estimated to be approximately 20,000.

B. THE ROLE OF INCO AND PUBLIC AUTHORITIES 5. As is set out in more detail in the affidavit of Dr. Thomas Burnett sworn January 15, 2002 and elsewhere, Inco Limited (Inco) began to operate a large scale electrolytic nickel refinery in Port Colborne, Ontario in 1918 (the Refinery).

6.

I have spoken personally to dozens of Class Members from across the area defined by the Class regarding the Refinery and its operation. They have provided me with their own

knowledge, and have also informed me of information obtained from additional Class Members with whom they have consulted.

7.

I have also consulted with Mr. Emil Kaminski, who was employed by our law firm as a researcher from April to September, 2002. Mr. Kaminski formally interviewed dozens of Class Members from all across the area defined by the Class, and has spoken directly with hundreds more.

8.

I have also consulted with Ms. Ellen Smith, a Port Colborne resident for the past 12 years and her husband Mr. Craig Edwards, who has lived in Port Colborne all his life. They and their two sons live in a home in the highly contaminated Rodney Street area, and have been centrally involved in this issue both individually and as part of the community group Neighbours Helping Neighbours. They are also extremely knowledgeable, having read dozens of reports, attended virtually every public meeting and open house held on this subject, and having spoken to hundreds of Class Members from all parts of Port Colborne.

9.

I have also reviewed many of the documents referred to in paragraphs 14 and 15 below. Information that I have obtained from all of these sources is incorporated into the balance of this affidavit.

10.

Historically, the presence of Inco and its impact on the City of Port Colborne has been well

known throughout the entire community. Up until 1984, Inco was widely recognized by Class Members as the largest industry, and largest employer in Port Colborne. Since 1984, Class Members have generally been aware that the scale of Incos operations have been reduced substantially, but that the Refinery still continues to operate at a significant level.

11.

As a heavy industry using hazardous processes and substances, virtually all Class Members also appear to have known that if the Refinery was not operated or supervised properly, there was the potential for serious harm or damage to occur to Class Members.

12.

Class Members were also aware and/or have believed that Her Majesty the Queen in right of Ontario (HMQ), through its various arms such as the Ministry of the Environment (MOE) has inspected, approved, studied and responded to complaints about the Refinery. They have also known that the Region of Niagaras Public Health Department (Public Health Officials) have been responsible for overseeing the Refinerys operations to insure that the health of Class Members was protected. They have also known that the City of Port Colborne (the City) through its bylaws and zoning has been in a position to insure that Class Members health and property was protected.

13.

Virtually all Class Members have expected and relied on Inco, HMQ, Public Health Officials and the City to have operated and/or supervised the operation of the Refinery properly. They have also expected and relied on Inco, HMQ, Public Health Officials and the City to continue to

operate and/or oversee the Refinery properly.

14.

However, as a result of Inco, HMQ, Public Health Officials and the City not operating and/or supervising the operation of the Refinery properly, Class Members have in fact suffered losses and damages as set out below.

C. REPRESENTATIONS BY PUBLIC AUTHORITIES 15. Since 1997, in addition to their roles of supervising the Refinery, both HMQ and the Region of Niagaras Medical Officer of Health (MOH) have been advising Class Members that: (i) (ii) emissions from the Refinery do no pose any immediate risk, or any risk to human health, and that one of the substances that Class Members have been and are still being exposed to is nickel, and not the known human carcinogen nickel oxide.

16.

These representations were made in and through scientific reports and studies prepared by, in conjunction with, or for HMQ and the MOH. These two representations were then repeated by HMQ and MOH in press releases and in letters to the public.

17.

More specifically, HMQ has been advising that there is no risk or no immediate risk to health through, at minimum, the following reports, studies and press releases: Assessment of Potential Health Risks of Reported Soil Levels of Nickel, Copper and Cobalt in Port Colborne and Vicinity: May 1997, MOE Phytotoxicology Soil Investigation: INCO - Port Colborne (1998), MOE
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Phytotoxicology Soil Investigation: Port Colborne, 1999, MOE Assessment of Potential Health Risks of Reported Soil Levels of Nickel, Copper and Cobalt in Port Colborne and Vicinity: January 2000, MOE Soil Contamination in Selected Port Colborne Woodlots: 2000, MOE Phytotoxicology Soil Investigation: School Yards and Beaches, Port Colborne (April 2000), MOE Fact Sheet: Environmental Sampling program Confirms Metals Do Not Pose a Health Risk at Port Colborne Schools; January 25, 2001, MOE Soil Investigation and Human Health Risk Assessment for the Rodney Street Community, Port Colborne, March 2001, MOE Letter to Rodney Street Community Residents; May 2, 2001, MOE Phytotoxicology 2001 Investigation: Resampling of Soil at Humberstone School, and Arsenic in Soil at All Schools - Port Colborne, MOE Phytotoxicology 2001 Investigation: Resampling of Soil at St. Therese Catholic School, Port Colborne, MOE Letter to Rodney Street Community Residents; June 6, 2001, MOE Letter to Port Colborne Residents and Frequently Asked Questions; July 16, 2001, MOE

18.

The MOH has been advising that there is no risk or no immediate risk to health through, at minimum, the following reports, studies and press releases: Assessment of Potential Health Risks of Reported Soil Levels of Nickel, Copper and Cobalt in Port Colborne and Vicinity: May 1997, MOE Phytotoxicology Soil Investigation: INCO - Port Colborne (1998), MOE Phytotoxicology Soil Investigation: Port Colborne, 1999, MOE Assessment of Potential Health Risks of Reported Soil Levels of Nickel, Copper and Cobalt in Port Colborne and Vicinity: January 2000, MOE
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Soil Contamination in Selected Port Colborne Woodlots: 2000, MOE Phytotoxicology Soil Investigation: School Yards and Beaches, Port Colborne (April 2000), MOE Fact Sheet: Environmental Sampling program Confirms Metals Do Not Pose a Health Risk at Port Colborne Schools; January 25, 2001, MOE Soil Investigation and Human Health Risk Assessment for the Rodney Street Community, Port Colborne, March 2001, MOE Fact Sheet for Port Colborne Residents, Commonly asked Questions About Possible Health Effects Related to Soil Contamination, April 1, 2001; Niagara Region Public Health Department Letter to Rodney Street Community Residents; May 2, 2001, MOE Phytotoxicology 2001 Investigation: Resampling of Soil at Humberstone School, and Arsenic in Soil at All Schools - Port Colborne, MOE Phytotoxicology 2001 Investigation: Resampling of Soil at St. Therese Catholic School, Port Colborne, MOE June 4, 2001 Letter to East Side Community Residents: Niagara Region Public Health Department Letter to Rodney Street Community Residents; June 6, 2001, MOE Press Release dated June 22, 2001; Niagara Region Public Health Department Letter to Port Colborne Residents and Frequently Asked Questions; July 16, 2001, MOE Press Release dated July 20, 2001; Niagara Region Public Health Department East Side Community Resident Letter, August 7, 2001, Niagara Region Public Department

19.

In addition, these representations have been included in newspaper articles, television and radio broadcasts and on web sites that have been seen and/or heard by huge numbers of Class Members, and repeated at public meetings attended by large numbers of Class
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Members.

20.

It would be reasonable to conclude that because of the consistent, highly repetitive and extremely widespread nature of these representations that the entire Class has been exposed.

21.

These representations were made by the authors of the initial reports and studies, and perpetuated by the authors of the press releases and letters to the public, and by those representatives of HMQ and MOH who distributed these materials, or spoke publicly or were interviewed by the media.

22.

It is also clear that they were incorrect, in that: (i) Class Members have been exposed to the risk of harm, and have suffered actual harm that is consistent with being exposed to the contaminants found within the area inhabited by the Class, and Class Members have not been exposed to nickel, but instead have been primarily exposed to the human carcinogen nickel oxide.

(ii)

23.

HMQ and MOH ought to have known that there were risks of harm, and actual harm being caused by this exposure. Since 1994, for the reasons set out in paragraphs 28 through 34 below, HMQ and MOH also ought to have known that Class Members were being exposed to the known human carcinogen nickel oxide.

24.

Class Members were induced to rely on these representations, and did in fact rely on these
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statements because they were made repeatedly, and by public authorities (HMQ and MOH) that Class Members have normally and properly looked to and trusted for complete and accurate information on matters of this nature.

25.

Given that these representations were widely and repeatedly publicized by HMQ and MOH and held out to be the position of HMQ and MOH as the statutory authority with responsibility for matters of this nature, it was clear to Class Members that the intention of HMQ and MOH was that they should be able to and would rely on these statements.

26.

As a result of these representations, Class Members altered the positions they would have taken had the true facts been known, by (a) continuing to live in, purchase, improve or renovate property within the area defined by the boundaries of the Class, and (b) by failing to protect themselves against the hazards posed by exposure to the contaminants found within the area defined by the boundaries of the Class.

27.

As a result of these representations, Class Members have also suffered losses and damages as set out below.

D. ADDITIONAL ISSUES I. Nickel Oxide 28. In 1994, the Government of Canada released a comprehensive analysis under the Canadian

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Environmental Protection Act of nickel and its compounds (see the affidavit of Dr. Thomas Burnett sworn January 15, 2002, Exhibit F, Nickel and its Compounds).

29.

In it, Health Canada specifically identified nickel oxide as a human Group One - Carcinogen, ie. a substance for which there is considered to be some probability of harm for the critical effect (cancer) at any level of exposure (page 52).

30.

Well before 1994, tests conducted by Inco in the 1970s (copies of which were provided to the MOE), as well as other information and materials regarding the output from the Refinery were readily available to Inco and the other defendants. These tests, information and materials made it clear that nickel oxide was in fact the primary emission from the Refinery. As a result, all of the defendants knew or ought to have known that the primary contaminant in Port Colborne was not nickel, but nickel oxide.

31.

However, prior to our firm being retained as counsel for the plaintiff in March of 2001, none of the defendants had disclosed this fact to Class Members.

32.

Within days of being retained, we consulted with Dr. Thomas Burnett (who is identified in more detail in paragraph 62(ii) below) and were advised that for numerous reasons, the primary contaminant in Port Colborne was likely not nickel, but nickel oxide. These reasons included the basic fact that nickel oxide was the primary feed material processed at the

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Refinery furnaces, that raw nickel oxide is added part way through the process and much of it likely escapes into the stack emissions, and that nickel oxide is inherently stable and does not readily transform or change its form in soils. Most of this is basic, elementary information available from the public library

33.

As a result of discussions with our office, on March 19, 2001, Ellen Smith sent an e-mail to Mr. David McLaughlin, a soils expert with the MOE who had been taking a leading in role in the Port Colborne investigation. He confirmed that the vast majority, if not all of the Ni (nickel) detected in the total metal analysis (of Port Colborne soils) is nickel oxide. Attached and marked as Exhibit A is a copy of an e-mail from Dave McLaughlin to Ellen Smith dated March 19, 2001.

34.

On March 27, 2001, in the press release and at the news conference held to announce the commencement of these proceedings, our firm indicated that Class Members were not being exposed to nickel in Port Colborne, but instead to the carcinogen nickel oxide. This was the first time that this information had been provided to the general public or to Class Members by anyone.

35.

The fact that nickel oxide is the primary contaminant has now also been confirmed in further testing done by the Ontario Government, in testing done on behalf of our client (see the affidavit of Dr. Thomas Burnett sworn January 15, 2002, Exhibits D and E), and in tests

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conducted by Incos own consultants.

II. Developers and the City of Port Colborne 36. I am advised by Mr. Emil Kaminski that in recent years there are Class Members who have approached the City and obtained approvals and building permits for residential housing projects in Port Colborne. These developments were undertaken between the summer of 1998 and September of 2000, when the public was unaware of the elevated levels of any of the Contaminants of Concern.

37.

At the same time, since at least 1998 the City itself was aware of high levels of a number of the Contaminants of Concern. However, the City proceeded to grant approvals, provide zoning and issue building permits for the lands in question as part of its normal operations, with the knowledge that these lands were compromised.

38.

After the public announcement in September of 2000 that these areas were contaminated, sales of these lands were not possible, or were only possible at greatly reduced prices. Had these Class Members been informed of what the actual levels of contamination were, building at these sites would not have taken place.

III. Subsidence 39. In addition, Class Members in certain areas are also suffering losses related to subsurface

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operations by Inco that have involved the taking of water for refining operations and/or attempts to control the migration of Contaminants of Concern from Incos property. These operations have involved the pumping of water and subsequent disturbance of the natural water table.

40.

I have been advised by Mr. David MacGillivray of Terraprobe Limited, P. Eng. (B.Sc. Queens University, Geotechnical and Environmental Engineering; M.A.Sc. University of Waterloo, Hydrogeology and Geomechanics) that these operations now involve the use of ten purge wells, six of which appear to be active. These purge wells are located on the western boundary of Incos property in close proximity to Class Members lands. They are operated pursuant to a permit issued under the Ontario Water Resources Act which allows Inco to extract up to 345,600 litres per day from the local water table.

41.

The water table in this area is near the surface. The underlying material in this area appears to contain a significant amount of peat and clay. These materials are particularly sensitive to the removal of water content. If water is removed, there is a natural tendency for overlying materials to settle or subside.

42.

Within the geographic area bounded by Rodney Street, Davis Street, Durham Street and Welland Avenue, there are numerous signs of settling and subsidence causing damage to homes, garages, decks and other structures, sidewalks and driveways. This has also limited

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certain Class Members rights to sell, finance, mortgage or insure their properties at a fair value, or at all.

43.

I am advised by Mr. MacGillivray that it is reasonably probable that Incos subsurface operations have caused or contributed to these losses.

E. CLASS CATEGORIES AND DAMAGES 44. In this action, Class Members can generally be divided into 4 categories. These categories could quite properly form the basis for subgroups within this proceeding:

I. The East Side Community Area 45. The East Side Community of Port Colborne (also known as the Rodney Street Area) is an area defined as being bounded by Rodney Street to the south, Davis Street to the East, Durham Street to the north and Welland Street to the west (the East Side Community Area). There are approximately 310 homes within this area. It is estimated that this group of Class Members would total approximately 1,000 individuals.

46.

The East Side Community Area abuts the Refinery and is the site of the most extensive contamination found to date anywhere in Port Colborne. For example, the current guideline for nickel in Ontario (human health effects based) is 310 parts per million (ppm). Soil at residences in the East Side Community Area have been tested at levels up to 17,000 ppm. The interior of residences (attics) have been tested at levels as high as 16,000 ppm.
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47.

The East Side Community Area is also one of the poorest parts of Port Colborne. House prices, even prior to the announcement of contamination in this area, appear to have averaged $60,000 to $80,000. Economically the area was already depressed, with low housing costs attracting a large number of elderly persons and others on fixed incomes, as well as partially or unemployed persons, persons with disabilities and social recipients assistance. At any time, between 25% and 40% of residents in this area might fall into one of these categories.

48.

Since the announcement of high levels of contamination in this area in September of 2000, home sales in this area have virtually ceased. As a result, the present value of properties in this area would appear to be nil.

49.

Furthermore, a significant number (at least 75) of the properties in the East Side Community Area contain rental housing units. Since the announcement of high levels of contamination in this area in September of 2000, many of these units have been vacated and have remained vacant, causing the owners of these properties to lose income.

50.

In addition, on November 16, 2000, Mr. Allen Kuja, a senior MOE official who had been working directly in the community for many months announced at a public meeting that from his observations I might get in trouble for saying this but theres something going on ... Theres areas where every single household has someone sick, every single family, some

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member has something - cancers, rashes, leukemia... Mr. Kuja was transferred off the Port Colborne project immediately after making these statements.

51.

Further observations and contact by legal counsel have confirmed these statements to be accurate. Consequently, the East Side Community Area is also where the majority of health related problems would be expected to have occurred, and to continue to occur in the future.

52.

Preliminary health assessments by government agencies and consultants retained by Inco have indicated that based on responses from this community, significant further analysis is warranted, and a multi-million dollar health study will begin this spring. This study will examine all of Port Colborne, but with an emphasis on the East Side Community Area.

53.

Damage claims from this area would be expected to be relatively large, ie. in the range of $10,000 to $250,000 dollars per person.

II. The Table A Area 54. In addition to the East Side Community Area there are also large portions of Port Colborne, also primarily on Port Colbornes east side, where contamination levels are above Ontario MOE Table A guidelines. This area covers a substantial amount of residential development, but also includes large tracts of farmland to the north and east of Inco. It is estimated that this group of Class Members would total approximately 9,000 individuals.

55.

While not as heavily contaminated as the East Side Community Area, the Table A Area

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has also suffered a decline in property values. The ability of homeowners to finance these properties has also declined.

56.

Many of these properties have contamination levels that also exceed the current Ontario guidelines related to human health.

57.

At the same time, damage claims from the Table A Area would be expected to be more modest, ie. in the range of $1,000 to $10,000 dollars per person.

III. The Table F Area 58. There are also large tracts of land in Port Colborne where contamination levels are above Ontario MOE Table F guidelines (ie. Ontario background levels). This area surrounds the East Side Community Area and the Table A Area. It is estimated that this group of Class Members would total approximately 10,000 individuals.

59.

Given the limited amounts of contamination on these Class Members lands, the primary damage suffered by these individuals would be a diminution in value of their properties related to the overall stigma associated with contamination in Port Colborne.

60.

Very limited health impacts would be expected within the Table F Area.

61.

Damage claims from the Table F Area would be expected to be in the range of $100 to

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$2,000 dollars per person.

IV. The Farm Claimants 62. Lastly, within the Table A Area and Table F Area, there is a small subgroup of Class Members who own farm properties. It is estimated that this group of Class Members would total approximately 200 individuals.

63.

The properties involved are much larger than those of other Class Members. Because of their existing and future land use potential they are also more restricted in the levels of contamination that are tolerable. As a result, the Farm Claimants will likely have

significantly larger property damage claims than those of other Table A Area and Table F Area Class Members.

64.

They may also have significantly larger health claims due to exposure to higher levels of contaminated dust and soil as a result of engaging in agricultural activities.

65.

Damage claims from Farm Claimants would be expected to be in the range of $20,000 to $500,000 dollars per person.

F. THE PLAINTIFFS EXPERTS 66. From the outset, is has been clear that a wide variety of experts would be required in order to address issues common to the Class. Consequently, in order to advance this action and
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ensure that the interests of Class Members are properly represented the plaintiff has retained numerous experts from various disciplines. These include:

(i) DR. MARK RICHARDSON Dr. Richardson is the former Head of Health Canada=s Air and Waste Section, the federal government department that analyzes substances identified as potentially toxic under the Canadian Environmental Protection Act. He now works in private practice as a human health risk assessor. He is routinely retained to conduct community wide risk assessments and to provide other risk assessment services to the Government of Canada, provincial governments (including the Government of Ontario) and industry. His recent work includes human health risk assessments for Canadian soldiers stationed in Croatia and Kosovo; the assessment of human and ecological risks posed by what is considered to be the worst-ever mine tailings disaster in Europe (a spill that affected approximately 40 km of the Rio Agrio and Rio Guadiamar in Spain); human health risk assessments on behalf of provincial regulators in Wawa, Ontario and Yellowknife N.W.T. related to historic ore roasting operations in those communities; and participating on behalf of the Government of Canada in the peer review and recommendation of improvements to the human health risk assessment for the Sydney Tar Ponds, Nova Scotia. (ii) DR. THOMAS BURNETT Dr. Burnett holds his Ph.D. in chemical engineering. He was employed by Inco Limited for 28 years. He was the former Director of Environmental Affairs for Inco worldwide. He is familiar with almost every aspect of nickel mining and refining practices, and in particular with all of Incos operations worldwide, including Port Colborne. (iii) DR. ERNEST MASTROMATTEO Dr. Mastromatteo is trained as a medical doctor and as an epidemiologist. He is the former Chair of the Ontario Medical Associations Committee on Public Health. He is also the former Chair of the Ontario Medical Associations Occupational Health Committee. As well, for a number of years he was the head of Incos Occupational and Environmental Health Division. In this capacity he personally directed a 50,000 plus worker study that became one of the major pieces of evidence that the Government of Canada relied on in determining that the form of nickel found in Port Colborne is carcinogenic. (iv) MR. ALLEN BALDWIN
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Mr. Baldwin was employed by the Ontario government from 1969 to 1996. In 1969 he and others established what (in 1971) became the Ontario Ministry of the Environments area office in Welland, Ontario. During his career with the MOE, he was the Senior Abatement Officer and then the Enforcement Officer with direct responsibility for overseeing the operation of Incos Port Colborne refinery. As a result, he personally performed dozens of inspections of the refinery, and is familiar with its operations over more than 25 years. (v) DR. IRENA BUKA Dr. Buka is a senior pediatrician and Director of Canadas only Childrens Environmental Health Clinic. The clinic is part of a network of ten others located across the United States. Dr. Buka is a member of the Canadian Environmental Health Section of the International Joint Commission, and was recently appointed to represent Canada under NAFTA on the Expert Advisory Board of the Childrens Environmental Co-operative. She has an extensive background in environmental contamination issues, particularly lead. (vi) DR. HAROLD HOFFMAN Dr. Hoffman is a medical doctor who specializes in occupational health and medicine. His work in these areas relates directly to the types of hazards residents in Port Colborne have been exposed to. He is also a co-Director of the Childrens Environmental Health Clinic. (vii) DR. DEAN HESTERBERG Dr. Hesterberg is a soils scientist at North Carolina State University. He specializes in the analysis and effects of metal contamination in soils. Dr. Hesterberg has access to the United States Department of Energys Brookhaven National Laboratory on Long Island, New York, the site of the National Synchrotron Light Source where X-Ray Absorption Spectroscopy (XAS) can be performed. An x-ray beam up to one million times more powerful than those found in hospitals is used to determine the structure between atoms within soil samples. There are only approximately 50 sites in the world with this capability, the most recently constructed costing in excess of $1 billion. (viii) DR. DAVID PENGELLY Dr. Pengelly is a professor at McMaster University in Hamilton, Ontario and at the University of Toronto. He specializes (in part) in indoor air sampling and monitoring. Over the past 25 years he has conducted numerous air quality studies in residential, industrial and school settings for a wide variety of clients, including the World Health Organization.
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(ix) BODY COTE-ORE TECH LIMITED Body Cote is the former Ontario Research Foundation, which has now been privatized. Body Cote is one of the largest industrial sampling and testing companies in Canada, with more than 500 employees. They have been assisting by conducting tests on both the exteriors and interiors of certain homes in Port Colborne. (x) TERRAPROBE LIMITED Terraprobe is a firm of geo-technical and environmental engineers with extensive experience in soil and soil stability issues, hydrogeological issues, and in examining and engineering the clean up of contaminated sites. With over 80 employees located in 4 offices across Ontario, they have been involved in many subsidence and environmental remediation projects over the past 25 years. They recently completed the geo-technical (soil and stability) engineering as well as the clean up of contaminated lands for the new Air Canada Centre in Toronto, home to the Toronto Maple Leafs and Toronto Raptors. (xi) PINCHIN ENVIRONMENTAL LTD. Pinchin Environmental Ltd. is one of Canada's largest environmental, health and safety specialist firms, with over 140 employees in 21 offices across the country. Pinchin provides engineering, consulting, management, implementation and training in air emissions, occupational health and safety, environmental assessment and remediation, hazardous materials (asbestos, lead, mould etc.), indoor air quality and laboratory services. (xii) HUMPHREYS APPRAISAL SERVICES INC. Humphreys Appraisal Services Inc. have extensive experience with property valuation issues surrounding contaminated sites. Most recently they were retained in relation to the Walkerton water tragedy, where they organized the team that provided loss valuation data in relation to the approximately 6,000 properties in Walkerton. (xiii) MR. BARRY LEBOW Mr. Lebow has over 30 years of real estate appraisal and valuation experience. He has testified many times as an expert witness in court proceedings relating to issues of contamination. Amongst many other retainers, he was one of the leading valuation experts on behalf of
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thousands of home owners whose houses were contaminated by urea formaldehyde (UFI) insulation.

G. LEGAL COUNSELS RETAINERS 67. In the course of advancing the plaintiffs action, legal counsel for the plaintiff have also been retained directly by Class Members to assist with matters related to the contamination of their properties prior to the motion for certification in this matter being adjudicated.

68.

To date, counsel has been directly retained by approximately 250 families representing approximately 1,000 individual claimants.

H. LEGAL COUNSELS EXPERIENCE 69. Legal counsel for the plaintiff also have extensive experience in dealing with large groups of people in a legal context (ie. class proceedings, representative actions, classes within insolvency proceedings etc.). Active matters that are still ongoing at this time include Eatons (20,000 members), Dylex (2,500 members), Confederation Life (2,000 members), McMaster University (4,300 members), Wetsruc (800 members), AFG (600 members), Kingsway (400 members), National Trust (1,300 members), Colgate (500 members) and Kidd Creek (2,900 members). A much larger number of other proceedings involving similarly large groups of people have been completed.

I. THE PLAINTIFFS LITIGATION PLAN


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70.

In addition to being able to provide expert witnesses and experienced legal counsel, the plaintiff has prepared a litigation plan to allow this action to proceed in an orderly manner following certification. Attached and marked as Exhibit B is a copy of the plaintiffs litigation plan.

J. INDIVIDUAL ACTIONS AGAINST INCO 71. I have spoken to Ms. Ellen Smith, who has conducted research regarding previous legal claims filed against Inco in the Port Colborne area.

72.

She has advised that in 1994, the Augustine family filed a statement of claim against Inco related to high levels of contamination discovered on their family farm (the Augustine Claim). Attached and marked as Exhibit C is a copy of the amended statement of claim in the Augustine v. Inco Limited action dated December 13, 2000.

73.

I have been advised by Ms. Smith and others that despite the expenditure of very large amounts of time, money and effort by the Augustine family, after more than 7 years of litigation the Augustine Claim is still only at the discovery stage.

74.

Knowing what is required to attempt to litigate a property damage claim against Inco and the means of the average Port Colborne family, it would be incredibly difficult for virtually any family in Port Colborne to find access to the time, money and many other resources required

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to pursue a property damage claim against Inco on an individual basis.

75.

As a general rule, personal injury claims are even more complex, expensive and difficult to prove. It should be noted that even a claim the size of the Augustine Claim is only for property losses, and not for damages to health or other types of personal injury.

76.

For decades, Incos primary response has not been to litigate, but to purchase properties when issues regarding contamination have arisen. For example, a search of court records in Welland, Ontario revealed that no claims appeared to have been filed against Inco (other than the Augustine Claim) within the past 15 years. Instead, when crop failures have occurred or when residents have complained, Inco has regularly purchased their properties. As a result, Inco is now the largest private land owner in Port Colborne.

77.

However, on November 23, 2000, Dr. Bruce Conard (Incos Vice President of Environmental and Health Sciences) at a Community Based Risk Assessment Public Liaison Committee meeting stated in response to questioning by a Class Member regarding Incos more than 800 acres of land holdings in Port Colborne that Inco no longer wants to be in the real estate business, and as a result is no longer voluntarily offering to purchase contaminated lands.

78.

On July 19, 2001, at another Public Liaison Committee meeting a Class Member asked if the costs of the remediation were equivalent to buying the home, would Inco consider this. Mr. Del Fraipont (Manager of the Refinery) stated that Inco was not entertaining the idea of buying
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homes. That Inco was committed to the CBRA process.

79.

At the same time, Class Members in the most heavily contaminated areas (eg. the East Side Community) have almost universally expressed a very strong desire to see their properties purchased by Inco.

K. LYNNVIEW RIDGE 80. In order to obtain the information found in the following 11 paragraphs, I have consulted with Mr. Emil Kaminski and with Mr. Gavin Fitch, a lawyer with Rooney Prentice in Calgary, Alberta, the firm acting on behalf of the Lynnview Ridge Residents Action Committee, the residents association formed in response to the following issue.

81.

Lynnview Ridge, a suburb located in southeast Calgary, was home to an oil refinery built by Imperial Oil. The refinery operated for some 50 years before it was closed in the 1970's. The Lynnview Ridge housing development was built in the early 1980's after the land was re-zoned for residential use. Currently there are 160 single family dwellings in the Lynnview Ridge community, and 86 households in 7 multi-family dwellings in the Lynnview Terrace area. The average house value in the Lynnview Ridge area is estimated at between $150,000 and $180,000.

82.

In May of 2001, initial environmental tests were carried out by Alberta Environment in the

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area, primarily for the presence of elevated levels of lead. Of approximately 500 soil samples that have now been taken, 28% have exceeded Alberta Environments current guideline of 140 parts per million for lead, with less than 5% being over the former Alberta Environment guideline of 500 parts per million.

83.

The Calgary Regional Health Authority has indicated that they have no reason to believe that there are elevated levels of lead in residents in the neighborhood. In fact, a blood sampling study was conducted on a sample of children from the Lynnview Ridge neighborhood between 1989 and 1991, with no indication of elevated blood lead levels or related health issues. Blood lead levels in children from the Lynnview area were not significantly different from those in children from other neighborhoods studied.

84.

However, on June 25, 2001, Alberta Environment issued an Environmental Control Order requiring the development and implementation of a clean up plan for the entire Lynnview Ridge area. Attached and marked as Exhibit D is a copy of a Government of Alberta News Release dated June 25, 2001 entitled Environmental Protection Order issued in relation to soil contamination in Lynnview Ridge subdivision.

85.

Imperial Oil has chosen to appeal this Environmental Protection Order, and the matter is currently before Albertas Environmental Appeal Board.
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86.

However, despite the appeal, in August of 2001 Imperial Oil offered residents a buy-out package. A purchase formula was developed awarding the property owners 120% of the City of Calgarys 2000 market value assessment of each single-family dwelling. This was designed to cover the property value, as well as all associated costs and claims.

87.

For homeowners who choose to remain in the neighborhood, Imperial has offered a lump sum payment of $10,000 per household to cover the period while their property is being excavated for lead remediation.

88.

Owners wishing to sell their homes in Lynnview Ridge were given a deadline of October 31st 2001, by which they had to contact Imperial Oil. The buy-out offer expired after that date. In order to plan and implement a remediation program, each real estate transaction must close so that Imperial has possession of the property no later than March 31, 2002. The offer to purchase will be subject to a release covering costs and associated claims, and to other normal conditions associated with a real estate transaction. However, the release only pertains to property damage claims, and health claims are excluded from the release.

89.

One hundred and thirty five of the 160 single family home owners (or approximately 85%)

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have accepted Imperial Oils buy-out package.

90.

For those owners who wish to remain, and for those properties sold to Imperial Oil (which Imperial Oil intends to restore and resell) a remediation plan has been prepared. The remediation report presented to Alberta Environment on August 16, 2001 proposes a plan to remove lead and hydrocarbons remaining in the area. This plan is still being reviewed by public authorities.

91.

To date, no legal claims appear to have been have been filed against either Imperial Oil or any public authority as a result of this matter.

92.

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 16th day of January, 2002

) ) ) ) )

WOLFGANG KAUFMANN ) A commissioner etc. )

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