Affidavit SmithE

8/6/2019 Affidavit SmithE

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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

AFFIDAVI T OF ELLEN SMI TH

Sworn Apri l 9, 2002

I, ELLEN SMITH, of the City of Port Colborne in the Regional Municipality of

Niagara, MAKE OATH AND SAY:

1. I am a resident of Port Colborne, and as such I have knowledge of the matters to which Iherein depose, save and except where I have been advised of the same, in which case I

believe such information to be true.


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Personal Background

2. I am 34 years old and live with my husband and two sons (ages 10 and 5) at 91 RodneyStreet, Port Colborne. My husband has lived in Port Colborne all of his life. I moved to Port

Colborne when we purchased our home in 1991. Its current assessed value for municipal

taxation purposes is $61,000.

3. In or about the early spring of 2000, I and my family became aware that a Community BasedRisk Assessment (CBRA) process was being initiated in Port Colborne to try to address

contamination within the community caused by the operation of Incos Port Colborne

refinery (the Refinery).

4. On September 20, 2000, we were notified by the Ministry of the Environment (MOE) thatlevels of nickel contamination of up to 14,000 parts per million (ppm) had been discovered

on our property. Subsequent testing by the MOE has found levels elsewhere on our property

as high as 16,000 ppm.

5. Throughout this time, I have attempted to become and remain as knowledgeable as possibleon the issues related to the contamination of our property and the community by reading

virtually all of the reports issued by the MOE, Inco and its consultants both under and outside

of the CBRA process that have been made public, and those reports issued by independent

entities such as consultants retained on behalf of the plaintiff as part of the proposed class

action lawsuit, and by following the issue in the media.


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6. Since the summer of 2000, I or my husband have also attended virtually every public meetingand open house held on this subject. I have also reviewed the Minutes of virtually every

meeting where minutes have been kept and have been made available to the public.

7. In addition, I have been actively involved in this issue both as an individual and as part of thecommunity group Neighbours Helping Neighbours. Neighbours Helping Neighbours is the

largest and most active of the citizens organizations formed in Port Colborne in response to

the citys contamination problems. Through my own efforts, and through my work on behalf

of Neighbours Helping Neighbours, over the past two years I have spoken to or consulted

with hundreds of Class Members from all parts of Port Colborne, many of whom share the

concerns expressed in this affidavit.

8. In preparation for swearing this affidavit, I had previously reviewed numerous materials filedby all of the parties to this litigation in relation to various motions that have already been

heard by the Court. In addition, I have now reviewed portions of the affidavit of Dr. Bruce

Conard sworn March 21, 2002 (the Conard Affidavit), as well as portions of the affidavit

of Dr. George Becking sworn March 21, 2002 (the Becking Affidavit), portions of the

affidavit of Frank Clayton sworn March 20, 2002 (the Clayton Affidavit), portions of the

affidavit of Brian Watts sworn March 18, 2002 (the Watts Affidavit), portions of the

affidavit of Dave McLaughlin sworn March 28, 2002 (the McLaughlin Affidavit), portions

of the affidavit of James Smith sworn March 28, 2002 (the Smith Affidavit) and portions

of the affidavit of Kal Haniff sworn March 28, 2002 (the Haniff Affidavit), and now wish


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to make the following comments in response.

Delays in the CBRA Process

9. As a resident of Port Colborne who has followed the CBRA process from its outset, it is clearthat since its inception the CBRA process has been plagued by delays.

10. Since the beginning of the CBRA in the Spring of 2000, and continuing throughout theprocess, there has been an almost endless series of lapses and setbacks with reports,

protocols, proposed schedules and general administrative activities.

11. On numerous occasions, Incos primary consultant Jacques Whitford Environmental Limited(JWEL) has been reluctant or unable to bring forward the required protocols to the various

proposed studies in Port Colborne within the time frames established for these steps to occur

within. Once they have been presented, often further delays ensue when scheduling

problems arise and/or controversy between consultants occurs.

12. For example, early in the process, JWEL committed publicly to preparing a Technical Scopeof Work for the CBRA process for input and scrutiny by all stakeholders. This Scope of

Work was to indicate the direction that the entire CBRA was to follow, how to get to the

process endpoint, and the appropriate steps and studies needed to achieve this.

13. On a number of occasions, JWEL was not prepared to present the Scope of Work at public


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meetings, and cited reasons of internal conflicts with Inco as the reason for these delays.

After months of waiting, the Scope of Work was finalized and agreed upon, only because

JWEL was forced to do so in a day long session, closed to public access, by the other

stakeholders in this process.

14. This document was one of the more significant steps in the CBRA process, given that itprovides the overall strategy/gameplan that the entire CBRA must now follow. One would

have hoped that Inco and its consultants would have been much more efficient in completing

this step, and that the process would not have excluded the public when final decisions were

being made. However, this did not occur.

15. This is but one of many, many examples of how problems and delays in the process wereoccurring from the outset of the CBRA, and for at least a year before the advent of this claim.

Studies Begun After the Initiation of the Class Action

16. The two most important studies in the entire CBRA process from most residents point ofview are a human health study (now known as a Community Health Assessment Project) and

a property valuation study. Attached and marked as Exhibit A is a copy of a public

presentation given on July 26, 2001 by Ventana Clinical Research Corporation, the

consultants retained by Inco to conduct the human health study. However, up until the

initiation of the class action in March of 2001, although both studies were expressly stated to

be part of the CBRA Scope of Work, nothing had been done in relation to either of these


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studies including even the most preliminary step of retaining consultants to start the process

of establishing basic protocols etc.

17. It was only after the start of this claim that Inco finally began to bring in consultants toaddress these issues. Today, a year later, protocols for both of these studies still have not

been approved. With the partial information now available, it is estimated that at best the

property valuation study might be completed by the end of this year, and the health study will

not see completion until sometime in the year 2004.

18. At the same time, Incos consultants who are organizing these studies have publiclyconfirmed that should these studies show health or property value impacts, neither the studies

themselves or the CBRA process contains any mechanism for residents to be compensated

for their losses. This alone, makes the CBRA process completely untenable as a method of

resolving the problems Port Colborne faces today.

The Contaminants of Concern Issue

19. Further deficiencies even within the CBRA process itself are highlighted by the problems thathave surrounded the identification, and subsequent investigation of the so-called Chemicals of

Concern (the CoCs).

20. First, as with many other areas of the CBRA process, there have been extremely lengthydelays in even identifying the CoCs. This issue still has not been fully resolved almost 2


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years into the CBRA process.

21. Even more importantly from the residents' perspective, in order to be identified as a CoC, asubstance must (a) be a chemical used or released by one of Inco's processes, (b) be present

in "the Community" at levels in excess of current government guidelines and (c) be

scientifically linked to Inco.

22. One of the many problems with the CBRAs generic approach (as opposed to a Site SpecificRisk Assessment or SSRA) is that "the Community" is now defined as the whole of Port

Colborne. Consequently, the chemical must be found in excess throughout a large portion of

the entire community. If it is only found in one part of the City, despite the fact that it

exceeds guidelines, it will not be studied or remediated under the CBRA process. This is

what has happened with the contaminant lead.

23. Elevated levels of lead have been found in the Rodney Street Community area. However,because the high levels of lead have not been found elsewhere in Port Colborne, the

approximately 1,000 residents in the Rodney Street Community area have been told this is

one of the reasons that lead is not being considered as a CoC at this time.

24. The end result of the CBRA process is that where under an SSRA approach, at each of thesecontaminated sites further action would take place, at this time under the CBRA hundreds of

residents have lost the opportunity to have the lead contamination on their property


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investigated and addressed.

25. It is also interesting to note that while Inco denies any responsibility for the elevated levels oflead in Port Colborne, on October 26, 2000 at a public meeting Inco distributed materials

(attached as Exhibit B) specifically identifying all 7 of the contaminates for which damages

are now being claimed, including lead, as either constituent products, impurities or major

reagents used or produced directly from the Refinery.

26. It is also interesting to note that even if a chemical meets all of the criteria and assessments toqualify as a CoC, this is only the beginning of a very long, and very complex process. As the

two diagrams attached as Exhibit C showing Phase 1 and Phase 2 of the CBRA process

illustrate, it is bizarre to even suggest that the CBRA represents a no questions asked

opportunity for remediation for the residents of Port Colborne.

The Public Liaison Committee Process

27. The Public Liaison Committee (PLC) is a group of 8 residents (now reduced to 7 after theresignation of a number of members and alternates), who have been appointed by the City of

Port Colborne to represent the interests of the community in the CBRA process. None of the

PLC members live in the most highly contaminated portion of the City, ie. the Rodney Street

Community area. At the same time, in a process controlled by Inco and the MOE, the PLC is

the only entity there to ensure that the interests of the communitys residents are respected

and their needs are being met.


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28. In general, the members of the committee are individuals who for the most part have workeddiligently within the many limitations that the process imposes. However, almost two years

into the process, through no fault of their own it is clear that the PLC has not been able to meet

this objective.

29. First, the PLC process has rarely been open and available to public input, as access to theCommittee is limited to monthly or bi-monthly meetings held at City Hall. These meetings

are usually restricted in time, and to discussions pertaining only to issues that the Committee

Chairperson feels are necessary to discuss.

30. Records are kept of the regular PLC meetings, and distributed to PLC members and Citystaff. However, as a community resident it wasn't until months after the public meetings at

City Hall had started that I was able to obtain minutes to the previous meetings, as these were

not made readily available to all residents, and in fact most residents didn't know the minutes

were public information.

31. In addition, I have asked repeatedly for documents, minutes, protocols etc, all discussed atthese public meetings and identified as public information. I have had to contact City staff

repeatedly, only to receive limited information or none at all. I have also made similar

requests to the Chairman of the PLC for this public information, with the same results. In

a process that claims it is open and available to all, this does not seem to have been the case.


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32. The PLC had also claimed it would keep the public informed and seek input from thecommunity by way of a communication plan which would include "town hall" meetings held

regularly, and out in the community at large. At such meetings, residents would be able to

communicate their comments and concerns to the PLC. Since the start of the CBRA process,

there has only been one such town hall meeting, and it was overshadowed by the MOE's

March 2001 report and the errors it contained.

33. It is also noteworthy that since the community organization Neighbours Helping Neighbourswas formed, attendance at that groups meetings has consistently been at least twice that of

PLC meetings. Neighbours Helping Neighbours meetings now regularly involve residents

from the Rodney Street Community area, from elsewhere on the east side, from the west side

of Port Colborne and from the surrounding rural/agricultural areas.

34. Further, even more fundamental flaws exist in the actual functioning of the PLC/CBRAprocess. For example, under the CBRA, decisions made up until now have in fact almost

always been made at the Technical Sub-Committee (TSC) level, where residents are only

allowed to attend as "observers" with no ability to comment. These decisions, effectively

already finalized at the TSC level, are then presented at a PLC meeting where the public is

allowed to comment briefly. At this stage, it is almost impossible to challenge these

decisions, as in most cases months of work has already taken place and PLC members who

sit on the TSC and staff from Beak International (Beak, the PLCs technical consultants)

have already committed to the proposal before it is even brought to the PLC. In most cases,


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the PLC simply approves the TSC recommendation with very little discussion or debate. In

this way, the CBRA/PLC methodology has also resulted in the exclusion of most public

opinion from the decision making process.

35. Similarly, shortly after it was formed in May of 2000, the PLC was asked by the public not toconduct its business in a secretive way, and to keep their meetings and meetings with

consultants open and transparent. The PLC voted against this approach, citing the need for

private discussions and closed door sessions. In passing, it should be noted that this decision

was made long before the commencement of any legal action regarding Port Colborne.

However, this approach has also helped to ensure that most major decisions to date have

reflected a limited amount of public input.

36. It is also worth noting that Inco, it's CBRA consultants, the MOE, the PLC, and Beak havealways been able to have private meetings without the public, interested residents or anyone

else in attendance. Normally no minutes are kept at these meetings, and quite often the

public is not even aware these meetings have taken place. Since the beginning of the CBRA

process, many of these types of meetings have occurred with no public knowledge. This

further adds to the publics concern that matters directly affecting residents futures are being

decided without public input behind closed doors. It also highlights the fact that if any of

these parties have had the desire to meet in confidence they have been able to do so freely,

both before and after this claim was commenced.


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37. The PLC has now acknowledged that these approaches were generally inappropriate, andwithin the past few weeks have attempted to revise their procedures somewhat to allow for

more public consultation before major decisions are in fact finalized. At the same time, there

is no way of undoing 2 years of decisions that have been made while the public has had a

very limited role in the process, and there is no way of knowing if the proposed changes will

correct any of these shortcomings.

38. Finally, there have been and continue to be significant divisions within the PLC membershipitself, and issues between various members of the PLC and members of the community,

which make communication with individual committee members outside of PLC meetings

problematic. This has also hampered the process from the outset.

The PLC and its Technical Advisors

39. From the start of the CBRA process, it has been evident that the types of issues that need to beresolved in Port Colborne would require a high level of scientific inquiry and expert analysis. In

order to oversee this process and protect the communitys interests, it was expected that

adequate technical expertise would be made available, either through or to the PLC. However,

this is another area where significant concerns have arisen.

40. The PLC members themselves have limited expertise in almost all of the areas that they arebeing asked to address. The Committee has stated many times that they are just ordinary

citizens like the rest of the community, and are dependent to a large extent on their technical


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advisors Beak.

41. At the same time, Beak also has limited expertise in the areas that are of greatest concern tomost residents, these being human health issues and property valuation issues.

42. Beak promotes itself and appears to be quite well respected as an environmental specialistconsulting firm. In this regard, Beak offers services and expertise in the areas of

environmental modeling, fisheries management, wildlife management, wetlands

management, environmental reviews and permitting, water quality issues, threatened and

endangered species, habitat conservation plans, forest management, and watershed analysis.

This very much appears to be Beaks primary or core business.

43. While Beak does indicate that it offers some environmental risk management services, aportion of which can address human health issues, the company appears to have been

involved in a limited number of these types of projects relative to its primary ecology

based business.

44. This is also illustrated by the fact that of dozens of employees, until December 2001 Beakdid not have any staff members with professional training in human health sciences, eg.

doctors, human health risk assessors, human toxicologists, pediatricians etc.

45. In December of 2001, Mr. Peter Nicholl, an industrial health and safety toxicologist was


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hired. However, this is only one of many different health related disciplines that have been

used by others to address the myriad of issues already raised in Port Colborne. Over the past

almost two years, Beak has been the sole PLC/public advisor on matters involving the design

and implementation of two major human health studies (one by Incos consultants and one by

public health officials), the review of a lead study conducted by the local public health

department, and the review of the MOEs ongoing human health risk assessments of the

Rodney Street Community. Both then and now, many residents have expressed concerns

about the qualifications and level of expertise in dealing with the wide range of health issues

that must be addressed when these studies are being drafted or assessed.

46. As one example, when the health departments lead study was released last summer, the PLCundertook a review of this document on the communitys behalf. One of the primary reviews

then appeared to be conducted by the mother of one of the PLCs members. While it is

believed that she is trained as a nurse, the fact that this was the best and highest level of

expertise available to protect the interests of the entire community was quite disturbing to

many. In light of the large body of specialized knowledge available to Inco, the MOE and

others, its seems that much of what has occurred in relation to health issues in Port Colborne

has proceeded without corresponding expertise being utilized on the communitys behalf.

47. This same issue is also raised by the property valuation study that is currently being designedby Incos consultants, Deloitte and Touche Real Estate Services. Once again, the PLC and

Beak are attempting to represent the interests of the community, but with no apparent


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qualifications (ie. no qualified appraisers, valuators, brokers or other real estate experts).

This also causes many residents to lose further confidence in the PLC/CBRA process.

48. In addition, there have been concerns since the outset of Beaks involvement in the CBRAprocess resulting from the fact that Beak works extensively in the mining sector, for clients

such as Falconbridge, Noranda and Stelco, all of whom have an interest and likely a very real

concern about the implications of a CBRA decision that might require extensive remediation

in Port Colborne. Questions have also been raised about Beak given their work history with

Inco in the past, which was disclosed to the PLC but not entirely to residents. Concerns have

also been expressed because of comments made by Jim Bishop (Beaks senior consultant in

Port Colborne) in a case in which Mr. Bishop recently appeared as an expert witness for Inco,

a copy of which is attached as Exhibit D. The fact that Inco ultimately pays all of the

consultants involved in the CBRA process has also been a contentious and difficult issue for

some residents to accept. All of this creates a real concern in the minds of many residents

about the potential for bias.

Data Collected and Used in the CBRA

49. Concerns have also been raised by the public regarding the reliability of much of the data thathas been collected and/or used as part of the CBRA process to date.

50. One of the best examples would be the air monitoring issue, where outdoor air samplingdone on farms and around area schools has twice been rejected by the PLC as not being


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sufficient, with sampling being done on days where conditions were unrealistically wet or

where wind speeds and directions were not reflective of actual circumstances, and with other

questionable techniques being used.

51. However, despite the fact that the PLC has rejected this data, the MOE and Inco continue tomake reference to it. This illustrates another significant problem in the CBRA process. As

noted in the PLC Minutes of September 27, 2001, Ruth Kramer (a local resident)

commented that it appears to her that the PLC has been left out of a lot of things. Harry

Wells (Chairperson of the PLC) answered in the affirmative and added that certain things

have closed doors and the PLC must ask for documents over and over again. Harry Wells

added that the PLC finds it difficult to function within their means, time constraints, etc. and

that the PLC has no outright authority, they are simply people, the public, as the audience

are. While that evening Mr. Wells went on to indicate that administratively things were

improving somewhat, the root problem has still remained.

52. Mr. Wells and other members of the PLC have made similar comments on many otheroccasions. The fact that the PLC has no authority, and exists purely in an advisory capacity

with no ability to do more than request that material be provided or that a certain course of

action be followed, has meant that when the PLC does try to take the initiative to act on

behalf of the community these attempts are frequently thwarted.

53. Regarding indoor residential air sampling, this was not even considered until after the issue


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was raised by the lawyers for the class action in May of 2001. Almost a full year later the

CBRA process has still been unable to even put together a protocol for indoor sampling, let

alone do any analysis of the risks people are being exposed to. It is also noteworthy that

despite previous evidence last fall by Inco and the MOE that interior testing in the area north

of Louis Street was urgently needed, none appears to have occurred. This type of testing

should have been a high priority for the public agencies responsible for this area, to either

relieve the community of its anxiety and concerns, or to allow a decision to be made to remove

residents from what are still completely unknown levels of exposure.

54. The MOE has also been attempting to collect more outdoor air monitoring data. However,there are numerous reasons why this data is now suspect. For one, the air monitoring

samplers in the Rodney Street Community are located downwind of lands which recent

testing has indicated are only slightly contaminated. At the same time, the monitors are

located primarily upwind of all of the areas in the community where high levels of

contamination have been found by the MOEs testing. As a result, these monitors are not

assessing the air quality for residents living in this community.

55. As well, the MOE's three air monitors in the Rodney Street area have been poorly maintainedsince they were placed in the community last summer. When the samplers were initially

installed in late Spring/early Summer the hum from the motors could be heard, and usually

once or twice every two weeks someone from the Ministry would come to check on the

monitors and collect the samples.


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56. By late August/early September 2001, it was quite evident that the monitors were notoperational because, on a regular basis, no sound was coming from them at all.

57. When I observed officials of the MOE at the ball park, I also observed that the samplescollected were frequently mishandled. For example, no gloves were worn to remove filters,

filters were dropped on the ground then picked up and transported to the MOE vehicle or put

back into the monitor. I have not seen the use of any type of containment device or bag in

which to put the filters once they were removed. I have also witnessed a Ministry official

remove a filter that was very "dirty", walk back to the vehicle parked on the side of the road,

then a few minutes later walk back to the monitor and put what appeared to be the same

"dirty" filter back in, then leave.

58. Another example of the poor maintenance of these units is the fact that the top portions oftwo of the three monitors have been missing since approximately the end of February of this

year, and one monitor has been completely tipped over since the last week of March.

Attached and marked as Exhibit E is a copy of a picture of the MOEs air monitors taken

by myself on April 2, 2002.

59. Soil data collected and used in the CBRA has also proven to be unreliable, to the detrimentof the community. For example, as part of its sampling program conducted in the fall of

2000, the MOE sampled soil at the home of Mr. Bernie Sumbler at 87 Rodney Street. This

testing revealed contamination as high as 6,200 ppm of nickel at this property. Given that


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other properties in his area had tested considerably higher, Mr. Sumbler requested that the

MOE re-test. Attached as Exhibit F is a copy of the MOEs re-sampling report dated July

24, 2001.

60. As the new report shows, upon re-testing using a proper grid pattern (as would have beendone had an SSRA of this property been conducted), levels at high as 11,000 ppm were

discovered. This was quite important to Mr. Sumbler, as it would be to any resident, given

that potential remediation is dependent on the levels of contamination found at each site.

Here, as a result of proper re-sampling occurring, Mr. Sumbler has now become entitled to a

clean-up pursuant to the MOE draft and final orders against Inco .

Enbridge Gas Problems

61. In the fall of 2000, Enbridge Gas installed a new gas line along certain streets in the RodneyStreet Community, as the old lines needed to be replaced. At that time we were informed by

the supervisor in charge that there were issues pertaining to the soil contamination in this area

that Enbridge might not have been aware of. The new lines were then installed, but not

connected to our homes because of recommendations to look into these issues further.

62. In January of this year, I called and reported a natural gas smell that came from two houseswest of mine. Upon further inspection, it was confirmed that the line was indeed damaged

and leaking, and a crew was sent out to fix it. This damage may have occurred when Inco

and Stevensville Lawn Services performed a "clean up" of the yard located at this home in


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the fall of 2001.

63. A few days later, I again made a call to Enbridge to inform them that once again I couldsmell gas. At this time I had the opportunity to speak directly to the Supervisor of

Operations, Mr. Henry Ostaszewicz, who informed me that the old line was probably

deteriorating and should be replaced, but for now all they would do was repair the leak.

64. On April 1,2002 we received a flyer in our mail stating that Enbridge "was switching overthe existing gas service to the newly installed gas main".

65. When the work crews arrived on April 2, 2002, an employee of Enbridge advised me thatthey wouldn't be able to install the line and connect the new meter on the opposite side of our

house as had originally been planned. I inquired why this couldn't be done, and was told that

there were issues with the soil contamination in this community and that Enbridge couldn't

put their workers in a situation where they would be exposed to it. The workers had been

specifically advised not to go under our home to connect a gas line to the new meter because

of concerns about exposure to the soil under our home.

66. It is quite discomforting to know that a service such as installing a new gas line for the safetyof the community has been delayed because Enbridge will not allow their workers to be

placed at risk even for a short period of time, yet the residents in this community are being

exposed every day from either outside or inside their homes and the regulating officials


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repeatedly announce that there are no adverse health effects expected. It is equally

disturbing to be told that public utilities workers are still being instructed by their employer

to avoid doing any work under the home that my family and I are forced to continue to live

in.

Costs of Metal Testing and Speciation

67. During the summer of 2001, many residents started checking levels of contamination bothinside and outside of their homes. These samples were sent to an independent laboratory,

prepared and then sent to an accredited laboratory for analysis consisting of an ICP metal

scan. Costs associated with an ICP metal scan which will confirm the levels of contamination

of the six metallic CoCs referred to in the class action, are approximately $80.00 per sample.

68. It is also worth noting that in a number of cases, this type of testing has resulted in thedetection of levels of contamination inside homes even higher than those detected in the soils

outside. Attached and marked as ExhibitG is a copy of test results from 286 Davis Street

dated July 17, 2001, showing levels of nickel found in attic dust of 17,500 ppm.

69. I have also been advised by counsel for the plaintiff that now that laboratory methods andstandards have been established, the cost for metal speciation using XAS techniques will be

approximately $200 U.S. per sample submitted.

Precautions


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70. On September 20, 2000, Mr. Al Kuja from the Standards Development Branch of the MOE left amessage for my husband on the back of his business card, as we were not at home at the time.

He stated that the Niagara Medical Officer of Health will be coming to see you about HIGH

metal levels in your front lawn (emphasis in original). Mr. Kuja had come to our property on

June 8, 2000 to collect soil samples from our yard, as we had volunteered to have our property

tested at a previous public meeting.

71. Later in the day on September 20, 2000, Mr. Dave Young from the Niagara Regional PublicHealth Department informed my husband and myself of the high levels of contamination that

were found in our front yard, and provided us with a chart showing what the levels were and

at what depth, a copy of which is attached as Exhibit H.

72. Mr. Young verbally advised us to keep the children away from any open and exposed soil onour property and to make sure we washed the children's hands before eating as that was one

way that a child could ingest contaminants. We were also advised to wipe the paws of our

cat and dog before they came in the house, and to brush them outside. The general

recommendations were, "just try to keep as much of the dirt and soil outside of your home

and not track it inside."

73. Mr. Young was also quite concerned about the high lead levels found in our front yard whenhe found out that we have two young children (who at the time were 8 and 3 years of age)

and he again stressed to keep as much of the dirt outside as possible. This is the extent of the


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warnings we received directly from the health department about reducing our exposures to

these contaminants.

74. On February 15, 2001, the MOE provided the community with a written update of theMinistry's progress concerning the additional samples taken in the Rodney St. community

and a human health risk assessment, a copy of which is attached as Exhibit I. Included

with this correspondence was a one page flyer entitled, "High levels of nickel have been

found in the soil on my property", from the Regional Niagara Public Health Department with

ways to limit exposure to the soil, attached as Exhibit J. Of the seven precautions listed,

our family continues to try to follow each of them as a part of our daily routines.

Raising Our Children in this Environment

75. I am a stay-at-home mother raising two boys, Eric who is 10 years old and Andrew who is 5.

As a parent I believe in nurturing children so they will respect themselves and the environment

around them. I have tried to teach my children to appreciate what has been given to them, as

there are so many others who are less fortunate. I have tried to teach them what is right and

wrong and how to deal with circumstances they might experience in their childhood, in the

hope that it carries on through adulthood. But, one of the most important things that I've

stressed to both my children is that they are free to enjoy their childhoods and everything that

it has to offer, and to not grow up too fast. In the last couple years, it's been more difficult to

say that to them and still have the same meaning.

76. Since the MOE, Inco, the City of Port Colborne and Public Health Department knew, or


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should have known about the environmental problems associated with the Refinery for many

decades past, I find it very disturbing that no one from these agencies had the courage to

inform the public about these problems, and to properly look many years ago into the risks

and hazards that we have all been exposed to.

77. In our familys case, we bought a house and have lived on Rodney St. for the last 11 years,and this is where our children have been raised. I have always encouraged my children to

help me in our gardens. I have always enjoyed watching them play with their trucks and cars,

making roads and bridges in the soil on our property thinking some day they might wish to be

engineers. We have had numerous rounds of baseball, catch or frisbee in the backyard just

for fun and exercise. On a warm summer day we would spend it at the ball park to see if we

could get the kite to the end of the spool of string.

78. Now their play areas are restricted, the ball park is chained shut, they can't explore theirworld without barriers, they can't be children enjoying the surroundings of their own home,

whether it be inside or out.

79. No one warned us about the risks associated with the soil and air in our community, evenwhen Inco purchased the empty lot behind our home after a re-zoning application was quietly

withdrawn in April, 1994. Inco knew residents living on the south side of Rodney St. were

using that field and maintaining it during the summer months, but no one thought to advise

us the property might be contaminated and what we might be exposed to. The City of Port


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Colborne, specifically the planning department, and the MOE also knew or ought to have

known the characteristics within this community, but neither thought to inform the public.

80. As a resident of Port Colborne and more specifically of the Rodney Street Community, I feelpersonally violated by those in which we trusted to protect our environment and our health

and safety. As a mother watching her young children grow, I am sickened, and at a loss for

words to explain the feeling of not knowing what the future outcomes will be for my children.

The CBRA as the Answer?

81. As the majority of the residents have expressed throughout the CBRA process, the credibilityand integrity of Inco, the MOE, the City of Port Colborne and the Public Health Department

has been lost by their actions, or lack of action, and is not likely to be regained.

82. There is a deep level of distrust and resentment towards the agencies responsible for notdisclosing to the residents the extent of the issues we are now faced with. Yet these are the

same entities and agencies that completely control and have authority over the CBRA

process. Inco is the acknowledged polluter. Serious allegations of negligence have been

made against the MOE, the City and Public Health Department that have yet to be

adjudicated on by a Court. However, residents are being told that those claims should never

be decided by a judge, but instead, these very same parties should be trusted implicitly to

provide all of the answers for our community through a CBRA process alone.


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83. Aside from all of the other problems with the CBRA already noted above, this processinvolves no independent adjudication, no right or even a mechanism to claim compensation,

and no forum for any disagreement with the final decision in the process to be resolved. In the

end, the entire CBRA process will only result in a single outcome, a clean-up number, and

then the possibility of some type of remediation, in a form that the property owner will not

even have a choice in selecting. For these and many other reasons, the CBRA process alone is

not the answer to the situation here in this community.

84. As the following excerpts from PLC Minutes show, this fact has even been recognized bymembers of the PLC, the MOE and Inco:

November 23, 2000Paul Dayboll questioned the options for people that do not want to be involved in the CBRAprocess. Dave McLauglin advised that no one will be forced to use the CBRA, any resident

that owns property affected by Inco could go to Inco at this moment and ask them to do aSSRA. Paul Nieweglowski advised that the guidelines were developed originally for

remediating specific sites and were not developed for a wide range of properties. Theproperty owner could go to the MOE and request remediation and the MOE would go to Incoand advise they want the property cleaned up. Should Inco refuse, litigation would berequired.

November 30, 2000Harry Wells added that everybody has the right to go on their own, they do not need to be apart of this process, the TSOW (Technical Scope of Work) is not signed by anyone and is not

legally binding.

November 9, 2000Neale Kramer questioned whether there will be any compensation for those property ownersthat have a stigma attached to their properties as a result of contamination. Dr. Conard

advised he is not the correct person to ask questions of regarding compensation for injury orloss. Those are questions that need to be considered under circumstances, are of legal


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substance and since compensation is a legal issue, it will not be a part of the CBRA.

85. Over the last two years, a great deal has come to light regarding the conduct of publicauthorities and Inco, and the losses and damages that residents of Port Colborne have

suffered. Whether or not these losses are attributable to Inco, the MOE, the City or others,

and what if any compensation residents should receive are very important issues, but issues

that will not be considered or resolved under the CBRA process.

86. The losses that we have incurred, even to date, are such that we cannot either on a financialor personal level accept that they should be completely ignored. A class action represents the

best, most realistic option by which the many issues that the CBRA will not even touch on

can be adjudicated and resolved, whatever that outcome may be.

87. I make this affidavit in support of the plaintiffs motion for certification.

SWORN BEFORE ME at the City )

of Port Colborne, this 9 th )

day of April, 2002 )

)

) ELLEN SMITH

)

A comm issioner etc. )

Documents

Affidavit SmithE