Affidavit Pearsoni

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Court File No. 12023/01Ontario

SUPERIOR COURT OF JUSTICE

B E T W E E N :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, andTHE NIAGARA CATHOLIC DISTRICT SCHOOL BOARD

DefendantsProceeding under the Class Proceedings Act, 1992

AFFIDAVIT OF RON PEARSON

I, Ron Pearson, of the City of Markham, in the Regional Municipality of York,

MAKE OATH AND SAY:

1. Since October 1997 I have been employed by Barenco Inc., an environmental

engineering and site remediation service provider in Gormley, Ontario, as a Senior Scientist -

Risk Assessment.

2.

Prior to joining Barenco Inc., I was employed by Her Majesty the Queen in Rightof Ontario (“HMQ”) from 1970 to 1997. I joined HMQ as an Assistant Agricultural

Representative in Lambton County in January, 1970. In August 1970 I transferred to the

Department of Energy and Resources Management as an agricultural specialist with the

Phytotoxicology Section and held several positions with the Phytotoxicology Section during the

period from 1970 to 1997. From 1987 to 1997, I served as the Manager of the Phytotoxicology



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Section, Standards Development Branch, Ontario Ministry of the Environment (“MOE”). A

copy of my curriculum vitae is attached as Exhibit A .

3. Through the course of my employment in the Phytotoxicology Section, latterly as

Manager, I acquired extensive experience in assessing the impact of air and soil-borne

contamination on terrestrial ecosystems. I have conducted over a thousand investigations of soil

contamination and vegetation impacts in the Province and have published papers describing the

results of some of those investigations. In particular, I participated, either directly or by way of

review and approval of work performed by other Phytotoxicology staff members, in the

assessment of the impact of atmospheric emissions from Inco’s Port Colborne refinery on soil,

vegetation and domestic animals.

4. From 1993 to 1997 I participated directly in the development of MOE’s Guideline

for Use at Contaminated Sites in Ontario. In particular, I was the scientific lead for staff

committees with responsibility for the development of the generic soil and ground water criteria

and the preparation of three supporting documents providing guidance on site assessment

methodologies, site specific risk assessment (“SSRA”) procedures and on the scientific rationale

for the development of the 117 generic soil and ground water remediation criteria.

5. In my current position, I am responsible for site specific ecological risk

assessments undertaken by Barenco Inc. in relation to remediation of contaminated sites. I have

also provided project management and expert advice to Munic ipal, Provincial and Federal

governments from time to time in matters pertaining to environmental site assessments,

ecological studies and standards development.

6. I have knowledge of the matters to which I depose in this affidavit, except where I

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



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Area of Alleged Impact in Alleged “Category IV” - The Farm Claimants

7. I have reviewed the statement of claim in this matter. It identifies two types of

alleged injury to property, namely loss of use and enjoyment and loss of value. In this affidavit I

primarily address considerations relevant to determining alleged injury to property from the

perspective of phytotoxicity – in particular, the impact of soil nickel concentrations on plants and

crops.

8. I have reviewed the affidavit of Wolfgang Kaufmann sworn January 16, 2002. In

his affidavit, Mr. Kaufmann identifies four categories of proposed class members. The first three

categories are said to be distinguished by location of residence, as follows: (a) Rodney St. area;

(b) Table A area; and (c) Table F area. The fourth category (“Category IV”), identified as “Farm

Claimants” is said to be located within both the Table A and F areas.

9. Mr. Kaufmann identifies the Category IV area containing the Farm Claimants as a

zone extending north from Lake Erie to the 3rd Concession and between Cement Road/Main

Street West/Hwy. 58 on the west and Neff Road/Michael Road to the east. He estimates the

number of Farm Claimants to be approximately 200 individuals. Mr. Kaufmann does not

provide any further breakdown of the Farm Claimants and I have not verified the accuracy of

Mr. Kaufmann’s approximation of the number of individuals within this zone. For the purposes

of this affidavit only, I have assumed that it is accurate.

10. The MOE report published in 2000 and titled Phytotoxicology Soil Investigation:

INCO - Port Colborne (1998) (“MOE, 2000”) indicates in its contour mapping, that many of the

farms included in the geographical area identified in this case may have total soil nickel

concentrations that are well below the level of 200 parts per million (ppm) nickel which forms

the basis for the MOE’s generic Table A criterion value. Total soil nickel concentrations below



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200 ppm are generally accepted to preclude phytotoxic effects. Soil nickel concentrations above

200 ppm may or may not result in a phytotoxic effect, depending on a variety of factors, as

discussed below.

11. I have not reviewed any individual studies or reports supporting the property

damage claims for this category. However, based on the documented factors affecting soil metal

impacts on plants, in my opinion identifying any crop loss damage due to nickel or other form of

phytotoxicity requires assessment on a property by property basis. As such, there is no scientific

basis for assessing such damages based solely on the location of a given farm property in one or

more alleged “zones” of soil metal concentration.

12. As a preliminary point, from the limited amount of data (MOE, 2000) on soil

metal contamination of tilled farm fields, it is apparent that the MOE in recent times has taken

samples in fields cultivated for crop production at only two locations within the “Category IV”

area. Those locations and the corresponding total nickel concentrations in the relevant plough

layer (average of samples from 0-5, 5-10 and 10-15 cm) are shown in the accompanying Figure 1

(from Table 4 of MOE, 2000) attached as Exhibit B . Total soil nickel concentrations range from

108 to 1,100 ppm at the two locations. Two locations with a ten-fold difference in soil nickel

concentrations cannot defensibly be used in a predictive manner to delineate zones of metal

contamination.

13. At all other MOE sampling sites, the soil has been collected from sites that have

not been cultivated or recently disturbed. At most of these “undisturbed” sites, the soil was taken

from the 0-5 cm depth only. However, in some cases, deeper samples (5-10 and 10-15 cm) were

also collected. For the undisturbed sites sampled at depth, the average of the three depths has





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18. In the case of nickel, to identify any injury, a qualified professional would need to

first visually assess the crop in question for evidence of nickel-related toxicity symptoms. Those

symptoms will vary between crops and even between cultivars of the same crop. Also, as plants

may recover from foliar injuries depending on the severity, stage of growth and other factors,

observations of the crop would need to be made at different stages of its life cycle.

19. The next step is to sample and analyse the affected tissues to confirm that any

foliar symptoms are consistent with generally accepted phytotoxicity thresholds and to rule out

mimicking symptoms caused by other biological or abiotic agents (e.g. insect damage, nutrient

deficiencies). Because the thresholds will vary depending on the crop and on tissue maturity,

they are not in and of themselves a definitive indicator of phytotoxicity impacts. However, in

combination with detailed visual observations and soil analysis, they can serve as an effective

complementary diagnostic tool.

20. Next, one needs to confirm that the soil is contaminated with nickel at

concentrations that are consistent with the evidence of foliar accumulation and toxicity.

Although this is an important step in the diagnostic process, it, like the other diagnostic tools, is

not in itself determinative of causality. Other variables influence the availability of the metal to

plant roots, its uptake and accumulation by plants and its impact on growth/productivity. Some

of the main variables which need to be considered in assessing the role of soil nickelcontamination in crop productivity impacts are summarized below.

21. The following are some of the factors which affect the uptake and accumulation

of metals from soil:

(a) Soil type : This includes organic matter content, clay/silt/sand composition, cation

exchange capacity, soil depth to overburden and drainage status. Soil type can



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dramatically influence the availability of soil metal contamination to plant roots

and significantly influence the potential for plants to extract and accumulate the

metal from the soil. This is related to ionic adsorption (chemical binding)

differences among soil constituents, differences in how the metal is incorporated

into soil matrices and differences in chemical complexation of the metal by other

soil and organic chemicals under varying reducing and oxidation conditions. Soil

types are known to vary considerably within the Category IV area and there can

be several different soil types within a single field.

(b) Soil acidity : The acidity of the soil influences soil metal mobility and availability

for uptake by plant roots. Soil acidity also influences the chemistry of other

macro and micro plant nutrients and these, in turn, can attenuate or intensify

uptake and accumulation of soil metals. Soil acidity in cultivated fields is

impacted by agricultural chemicals and crop management factors and is normally

monitored through soil testing prior to planting and maintained in a desirable

range through addition of limestone-based materials.

(c) Soil nutrient status : The level of macro and micro nutrients required for optimum

plant growth and productivity also has been documented to influence the uptake

and accumulation of some soil metals. These nutrient: metal interactions can bepositive or negative and are both crop and soil (field) dependent.

(d) Soil metal availability : As discussed, the chemical form of the contaminant in

soil plays a major role in plant availability and potential for root uptake and crop

impacts. Chemical form would be influenced by the chemical form of the

contamination source and by both physical (soil type and chemical status) and



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biological soil processes (root exudates, micro-organisms). Many of these factors

have already been discussed.

22. It is well established that different crops respond differently to a given soil metal

concentration, both in terms of uptake/accumulation as well as growth/productivity impacts.

Even within species, cultivar or varietal differences can influence the magnitude of effects at a

given soil metal concentration. Other factors that could significantly influence potential crop

yield at a given farm property include variations in local climatic conditions (meteorological

influences), soil capability classification and farm management practices (e.g. fertility, insect,

disease and weed control, soil drainage, varietal selection, seed quality, planting date and

stand/population).

23. Farm management practices not only influence the potential yield of a given crop

in any given year, but in the case of nickel and other soil metals, also provide farmers with an

effective tool to mitigate against potential impacts of soil metal contamination. For example, it

is well established that maintaining soil pH in a desirable range for maximum crop productivity

and full utilization of soil nutrients will also dramatically reduce metal availability for root

uptake. In numerous published studies it has been shown that increasing soil pH to levels

recommended for production of most farm crops eliminated nickel toxicity by significantly

reducing nickel uptake and accumulatio n in nickel contaminated soils.

24. Without specific information on these factors on a year-by-year and field-by-field

basis, it would not be possible to ascribe variations or reductions in crop yield within the

Category IV area to a single component such as soil nickel concentration. An example of the

variability in grain corn yield from one year to another over the period 1917-1999 in the Niagara

Region (vs. the Provincial average) is shown in Figure 3, attached as Exhibit D . Prior to the



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merger of Lincoln and Welland Counties into the Niagara Region in 1971, crop yield statistics

were recorded separately. Figure 4, attached as Exhibit E , shows additional variability

associated with soil and climatic conditions within these neighbouring counties for the period

from 1917-1970, and further demonstrates the importance of geographic, soil capability and

climatic factors in the determination of yield potential for this area and the need for a field -by-

field evaluation of any soil nickel contamination impacts on crop yield.

25. In summary, the impact of soil metal concentrations on farm crops and other types

of plants is dependent on a wide variety of factors which can vary from crop to crop, from field

to field and from one property to another. Accordingly, the determination of crop productivity

impacts at a given soil nickel concentration must be conducted on a year-by-year, field-by-field

and crop-by-crop basis, with observations by trained professionals, sampling and analysis of crop

tissues and soil for various elements and an evaluation of individual farmers’ crop and soil

management practices, all of which directly affect crop yield potential in any given field in any

given year.

Reference Citation:

Chang, A.C., Granato, T.C. and Page, A.L. 1992. A Methodology fo r Establishing Phytotoxicity

Criteria for Chromium, Copper, Nickel, and Zinc in Agricultural Land Application of Municipal

Sewage Sludges. J. Environ. Qual. 21:521-536.

SWORN BEFORE ME at the City of

Toronto on March 21, 2002.

Commissioner for Taking Affidavits

Ron Pearson

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Affidavit Pearsoni