Affidavit Williams

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Court File No.: 12023/01OntarioSUPERIOR COURT OF JUSTICE

BETWEEN:WILFRED ROBERT PEARSON

Plaintiff-and-

INCO LIMITED,THE CORPORATION OF THE CITY OF PORT COLBORNE,THE REGIONAL MUNICIPALITY OF NIAGARATHE DISTRICT SCHOOL BOARD OF NIAGARA, andTHE NIAGARA CATHOLIC DISTRICT SCHOOL BOARDDefendants

Proceeding under the Class Proceedings Act, 1992

AFFIDAVIT OF ROBINA C. WILLIAMS(sworn March 28th, 2002)

I, ROBINA C. WILLIAMS, of the Town of Niagara-on-the-Lake, in the RegionalMunicipality of Niagara, MAKE OATH AND SAY AS FOLLOWS:

1. I have been the Medical Officer of Health for the Regional Municipality of Niagara since1995 and, as such, have knowledge of the matters to which I hereinafter depose. I obtained mymedical degree from the University of Toronto in 1970. I obtained a diploma in public health in1973, also from the University of Toronto. I was Associate Medical Officer of Health for theNiagara Region Health Unit from 1973 to 1978. I received my fellowship in paediatrics in 1980


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and then practised as a paediatrician in the Region of Niagara from 1981 to 1995. MyCurriculum Vitae is attached as Exhibit "A" to this my Affidavit.

2. The Region is a body corporate, which was formed on January 1, 1970, pursuant to theRegional Municipality of Niagara Act, RS.O 1970, c. 406. Within the Region's boundaries are12municipalities including the City of Port Colbome.

3. Pursuant to Section 15 of the Regional Municipality of Niagara Act, RS.O. 1990, c.RI3,the Region has the powers, rights, and duties of a Board of Health as prescribed by the HealthProtection and Promotion Act, RS.O. 1990, c.H.7 (the "HPPA"). The Niagara Region Board ofHealth was dissolved on January 1, 1984, pursuant to Section 106 of the Regional MunicipalitiesAmendment Act, 1987 S.O., c. 22. Thereafter, the Region, through its Community and HealthServices Committee, has operated the Public Health Department and employed a Medical Officerof Health.

4. As Medical Officer of Health, I am accountable through the Community and HealthServices Committee to the Regional Council of Niagara and I am responsible for the mandate ofthe Regional Niagara Public Health Department. This mandate is to superintend and provide orensure the provision of public health programs and services, including chronic disease preventionservices, population health services, clinical services, and health protection and promotionservices within the Region as a Health Unit, as required by the HPPA.

5. Within health protection and promotion services, my duties include the inspection orcausing the inspection of the Region to prevent, eliminate and decrease the effect of healthhazards, which can involve environmental health matters.


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6. The Ontario Ministry of Environment (hereinafter referred to as "MOE") has the primaryresponsibility in Ontario for the implementation and enforcement of environmental laws andregulations. As part of that mandate, the MOE monitors the air, soil, and water in Ontario andcan make cleanup and other orders. The MOE also has the authority under the EnvironmentalProtection Act, R.S.O. 1990, c. E.19 (hereinafter "EPA") to regulate environmental remediation.

7. I am obliged to notify the MOE of any complaints of a health hazard related toenvironmental health and to investigate the complaint in consultation with the Ministry todetermine whether the health hazard exists or does not exist. The MOE has a reciprocalobligation to notify me.

8. The MOE has for many years sampled the soil in Port Colborne because of publicconcern about the emissions from the Inco operation in that city. I do not know thecommencement date of that sampling but believe that it started in the early 1970's.

9. The MOE has conducted several investigations, since at least 1991, of the soil andvegetation in Port Colborne to determine the effect of emissions from the refineries. Throughthis process, the MOE has concluded that the emissions from the nickel refinery, prior to itsclosure in 1984, resulted in elevated concentrations of nickel, copper and cobalt in the surfacesoil of Port Colborne.

10. As a result of phytotoxicological investigation results, the MOE initiated a health riskassessment to determine if the elevated nickel, copper and cobalt concentrations in the soil inPort Colborne resulted in the potential for adverse health effects. The Public Health Departmentcoauthored a report with the MOE. The report was released in May 1997.


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11. Two methods were used for the health study assessment. Firstly, a "site specific" riskassessment was done to determine the potential health effects, which may have resulted from thecurrent exposures in the Port Colbome area. This assessment provided estimates of intake forexposure from inhalation, oral and dermal contact and integrated these into a total multimediaexposure estimate.

12. Secondly, population health data was evaluated to determine ifthere was any evidence ofincreased disease incidence in the Port Colbome area, compared to the rest of Ontario. Data onadverse reproductive outcomes was provided by the Public Health Branch of the Ministry ofHealth. Cancer incidence data was provided by the Ontario Cancer Treatment and ResearchFoundation.

13. The conclusion of the 1997 report was:

"Based on a multimedia assessment of potential risk, no adversehealth effects are anticipated to result from exposure to Ni, Cu, orCo, in soil in the Port Colbome area. Furthermore, the review ofpopulation health data did not indicate any adverse health effectswhich may have resulted from environmental exposure."

14. The MOE conducted additional soil sampling in 1998 and 1999, which confirmed theearlier soil contamination findings. Accordingly, the "site specific" risk assessment from 1997was thought to be still valid. An update to the 1997phytotoxicology report was released by theMOE in January 2000. As part of that report, the Public Health Department updated the analysisof population health data based on several more years of available data.' I have attached asExhibit "8" to my Affidavit, pages 53 through to 58 of the updated report, which set out the


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background methodology and conclusion of the Public Health Department in its analysis. Wereached the conclusion that:

"Based on the current analysis, and in combination with theprevious released technical report, there continues to be no adversehealth effects anticipated to result from exposure to nickel, copperor cobalt, in soils in the Port Colborne area."

15. We recognized in the report that there were limitations with the data that we analyzed.Consequently, we could not uncategorically say there was "no effect", but we felt the rationalapproach taken, using the best available data, showed no evidence of a population health effectwith respect to nickel, copper and cobalt exposure in Port Colborne.

16. Concurrent with the ongoing analysis of the soil sampling and the population health data,the MOE, the City of Port Colborne and Inco developed a strategy to remediate the soil in PortColborne, which resulted in the process called the Community Based Risk Assessment (the ."CBRA"). I have reviewed the Affidavit of Bruce Conard (sworn March 21, 2002) and inparticular, paragraph 78 - 96 (inclusive) and agree with the history and, in principle, with thepurpose and benefit of the CBRA.

17. The Public Health Department has consistently participated in the CBRA process. Ourposition remains as set out in the conclusions to the update to the Population Health DataAnalysis, which is found in Exhibit 1,but repeated, for ease of reference, here:

2. The Regional Niagara Public Health Department stronglysupports all initiatives put forward by the stakeholders, MOE,City of Port Colborne and Inco to remediate the effected landswithin the guidelines as determined by the MOE and theCommunity RiskAssessment.


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". .. a health assessment is the evaluation of data and informationon the release of hazardous substances into the environment inorder to assess any current or future impact on public health,developed health advisories or recommendations, and identifystudies or actions needed to evaluate and mitigate or preventhuman health effects". To this end, it would be prudent formeasures to be taken to reduce contaminants of nickel, copper orcobalt in the Port Colborne area to meet, or be below MOEguidelines.

18. While there has been heated discussion on issues from time-to-time between variousparties and stakeholders involved, the CBRA has continued to move ahead and I believe that itprovides a process to resolve the public concerns regarding the Inco emissions in the communityof Port Colborne.

19. While the Public Health Department has supported and participated in the CBRA, I havecontinued to exercise my mandate under the HPPA.

20. In the summer of 2000, a Port Colborne resident who lived near the Inco plant requestedthat the MOE test the soil on his property. This led to further testing by the MOE in the areacalled the Eastside Community or the Rodney Street neighbourhood. This constitutes a 10-blockarea in Port Colborne, bordered by Louis Street to the north, the Inco refinery to the east, theWeIland Canal to the west, and Rodney Street to the south. The MOE sampled 179 properties inthe Eastside Community and undertook a health risk assessment for that neighbourhood.

21. The MOE found that lead levels, among other toxic metals, were documented to beelevated in some soil samples within the Eastside Community. \

22. As a result, I and my staff enlisted outside experts and immediately designed andimplemented a blood lead survey to determine exposure to and potential health impacts of this


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metal in the Eastside Community. A copy of the Lead Screening Report of Eastside Community,Port Colbome April - June 2001 is attached as Exhibit "C" to this my Affidavit. A total of1,065 individuals were screened. The conclusions from the blood level-screening program areset out on page 11 of the report.

23. The general conclusion was that the average Eastside Community blood lead levels werelow and similar to those from the rest of Port Colbome and other Ontario communities. Wefound that children and pregnant women were not at an increased risk of lead exposure ascompared to other communities in Ontario, even considering the localized elevated soil leadlevels. Although we found these results to be reassuring, we continued to recommend thatpeople limit their exposure to soil containing known contaminants.

24. As Medical Officer of Health, I also enlisted the Board of Health, and the Ministry ofHealth and Long Term Care to support a health study and a health study steering committee wasstruck, which included representatives from the community, the Public Health Department, theMOE, the Ministry of Health, the Ministry of Labour, and McMaster University. The specificfocus of the health study was to examine the potential impacts of the soil contamination in theEastside Community.

25. The Steering Committee recommended and the Region commissioned a health study forthe Eastside Community. A consortium of Goss Gilroy and Cantox Environmental was hired toconduct the study. These consultants developed the protocol for the study after meeting with

'\Eastside Community residents. They visited over 200 households, held open houses, anddistributed questionnaires to households of which 120 were completed. The message was clearfrom the community that there was strong interest in a health study, involving interviews and


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blood and urine samples. The consultant's design for the study protocol was reviewed andapproved by both an internal and a formal external ethics committee. The actual interviewingand blood and urine sampling was to take place in November 2001.

26. Unfortunately, the health study could not move forward as planned due to lowparticipation by the community. The inadequate participation would not have given us anaccurate, scientifically sound levels and results. There were various reasons why participationdropped from the strong initial interest, including the effect of the commencement of this lawsuitand statements made by counsel for Mr. Pearson concerning the health study.

27. In addition to the studies mentioned above, the Public Health Department has continuedto fulfill its public health mandate and respond to individual health concerns regarding soilcontamination in Port Colborne by providing:

(a) information through harm reduction advisories, fact sheets, informationsheets, and question and answer sheets on heavy metals;

(b) communication strategies which have included community meetings,door-to-door drops, telephone hotlines, website postings, and mediainterviews;

(c) open houses and personal meetings with residents to discuss specific healthquestions;(d) individual follow-up with public health nurses and inspectors;(e) ongoing information to, and consultation with, family doctors;(f) maintaining a heavy metals health hotline.

\28. The Public Health Department has also supported the process that resulted in the soilcleanup order made by the MOE on Inco regarding individual properties in the Rodney Streetarea.


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29. In addition, I have consulted with and retained experts as needed. As example, whenconcerns were raised about the potential health effects of nickel contamination in Port Colborneschools in the summer of 2001, I assembled a panel of experts on children's health through theadvice of the Chairs of the Departments of Paediatrics at both McMaster University and theUniversity of Toronto. These participants reviewed the most recent analysis of nickelcontamination and numerous relevant published studies about the health effects of the nickel, aswell as reports written by the MOE. These experts confirmed my opinion that there was noimmediate health risk for children attending Port Colborne schools.

30. I and my department will continue to monitor the situation in Port Colborne and will takesuch steps as are necessary to fulfill my duties and obligations under the HPPA. In themeantime, we will continue to support the CBRA process.

ur-; . SWORN.~BEFORE ME at the City ofV " 'f II. \:{__o n- '--'~, this' ieu..day of March,2002. Dr. Robina C. Williamsking Affidavits\

Affidavit Williams

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