Four Days in Port Colborne

Why residents of Niagara Peninsula have launched a giant class action suit against Inco and what their suit may unearth

By: Mick Lowe

I. Rodney Street
  The Welland Canal bisects the belly of Port Colborne with the neatness and precision of a surgical incision.
  The majority of the Port's 18,500 residents live west of the Canal, next to the city's surprisingly vibrant central business district, its dozens of heritage buildings, and the exclusive Tennessee Avenue and Sugarloaf Hill neighbourhoods overlooking the Lake Erie shore.
  On the other side of the Canal lies the East End: streets of modest, working class homes and boarded-up businesses, Inco's sprawling nickel refinery complex, and, wedged tight between the plant and the Canal, the 12 city block area known as Rodney Street.
 

... the pollution in Port Colborne has been invisible and almost imperceptible; in a word, insidious

  Last week Rodney Street became ground zero for the latest accusations surrounding Canada's toxic industrial legacy. A $750 million class action lawsuit against Inco produced sensational headlines across the country, and brought the national news media streaming into town.
  That's why I was lying face down in Craig Edwards' driveway peering into the crawlspace underneath his house at 179 Rodney Street last Thursday afternoon. I had first laid eyes on Craig and his partner Ellen Smith early that morning, as I made my inaugural drive down Rodney Street.
  A truck with a large satellite dish had been parked a few doors down from their home, and the young couple were standing in their front yard, being groomed for a live appearance on CTV's Canada AM.
  They had been singled out for special media attention the previous day when lawyer Eric Gillespie held up a nasty-looking soil sample which, he told a packed news conference, had been collected from underneath their house, less than a hundred metres away from the Inco refinery.
  Gillespie's Toronto-based law firm Daoust Vukovich Baker-Sigal and Banka is handling the class action suit against Inco, the Ontario Ministry of the Environment, the City of Port Colborne, and two area school boards on behalf of an estimated 25,000 current and former Port Colborne residents.
  If Gillespie was seeking ink with this ploy, and he undoubtedly was, he succeeded handsomely. He made the Thursday morning front pages of The Welland Tribune, "Province downplayed risks, says lawyer," and the St. Catharines Standard "Inco was aware of lethal smoke since '78: lawyer," and, he, too would appear on Canada AM.
  Not that Edwards and Smith, who are among Gillespie's clients, don't have legitimate concerns. Only five days earlier an official from the Ontario Ministry of the Environment had hand-delivered the results of tests conducted on soil samples taken from their yard the previous June.
  The analysis revealed excessive levels of arsenic, cobalt, copper, iron, lead, nickel and zinc in the young couples' yard. The levels of nickel at 179 Rodney were especially astonishing, as they are turning out to be in soil samples taken over a large area east of the canal.
  Nickel loadings varied between 4,300 and 14,000 parts per million, as compared to a Ministry guideline of 200 ppm. (A 1978 MoE report on soil contamination in the Sudbury district, by contrast, showed few nickel levels above 200 parts per million.)
  Not surprisingly, the yard at 179 was one of 16 Rodney Street properties that the MoE has ordered Inco to clean up by the end of June.
  Although MoE and public health officials have attempted to reassure Ellen and Craig that their health is not at risk, they have also told the young couple that their sons Eric, 9, and Andrew, 4, should not play in the yard.
  Lord knows the soil taken from underneath their house looked like a health hazard - the fine black dirt was covered with a whitish fur which Craig told me seemed to appear wherever the dirt in the crawl space wasn't covered by a plastic vapour barrier.
  Craig, of course, was convinced that somehow Inco was to blame for the white fur. I'm no expert, I told him, but I'd lay money that what we were looking at was not any form of industrial pollution, but rather an air- and damp-loving mould growing in the dark underneath the house.
  If I was right then "the highly contaminated soil" held up a day earlier by Craig's lawyer had in fact had nothing at all to do with Inco, but a whole lot to do with providing a sense of perspective about some of the allegations that were flying around Port Colborne last week.

II. Follow The Leader
  Unlike the sulphur-damaged landscape of the Sudbury Basin where the nickel industry has left a legacy that is both visible and notorious, the pollution in Port Colborne has been invisible and almost imperceptible; in a word, insidious.
  Oh, there were clues that something was amiss, the locals would tell you last week, but no one really paid much attention. There was the case of the "muck farmers," a family of truck gardeners who made a successful living for a time growing vegetables in a rich peat bog located just to the east of the Inco refinery.
  Eventually, though, the family's crops began to wither and their yields tailed off. Finally Inco simply bought out the muck farmers and the family moved on. There was, come to think of it, a fair bit of that. By the 1990s Inco, already the area's single largest property owner, had acquired hundreds of additional acres around town.
  There were also reports over the years of the company's agents quietly - and voluntarily - paying compensatory damages to local farmers whose crops would occasionally fail. Still, no one thought much about these events until two families, the Augustines and the Todds, took actions that were to leave an indelible imprint on Port Colborne and, one suspects, on Inco.
  Allan Augustine's family has been farming on 100 acres of land a mile northeast and downwind of the Inco refinery since 1808, but by the late 1980s the city was creeping ever closer to their farm, and the Augustines decided to develop a handful of residential lots on one corner of their property.
  To the surprise of Allan Augustine and his wife Monika, a bevy of public officials, including representatives of the City of Port Colborne, the Ontario Ministry of the Environment, and the Niagara Public Health Unit, told them that an environmental assessment, especially of their soil, would be required before the land could be re-zoned for residential use.
  The Augustines dutifully hired a private environmental consultant to test their lands, and, like Craig Edwards and Ellen Smith a decade later, the farm family was shocked to learn of the levels of heavy metal contamination, especially nickel, on their otherwise fertile-looking farm.
  In November, 1991 Dr. J. N. Burkholder, who was then Niagara Region's Medical Officer of Health, sent the Augustines a letter that would neatly summarize the dilemma facing many Port Colborne residents to this day.
  "It is true that the observations on nickel content in the soil of your proposed subdivision exceed upper limit of normal guidelines in regard to decommissioning sites," wrote Burkholder in somewhat garbled English.
  "It is my understanding that the guideline is based on the potential effect on plant life and I understand from the information provided that productivity of gardens for example, might be expected to be lower because of the nickel content.
  "There are no guidelines based on health as to what levels can be tolerated in soil. There are simply no studies done to show health outcomes in a human population residing on land with this level of contamination.
  "In essence, although we cannot predict deleterious effects on human health, neither can we give assurance that this or any other level of nickel will be absolutely safe to a human population," Dr. Burkholder warned.
  As residential property the flat, rich, farmland of the Augustine place was worth millions. With Dr. Burkholder's caveat, it was worthless. On November 8th, 1994, the Augustine family filed a $600-plus million lawsuit against Inco in the Ontario Superior Court of Justice.
  Among other things, the suit claimed compensation for general damages, negligence, nuisance, and trespass, not to mention costs and interest.
  As is its wont, Inco was mounting a vigorous defense against the Augustine's lawsuit when Doug and Gail Atkinson Todd moved to Port Colborne to found their own community weekly newspaper, The Leader, in May of 1996.
  It didn't take long for Doug Todd, a thorough and methodical reporter, to learn about the Augustine lawsuit as it wended its way through the discovery stage prior to trial. In the fall of 1998 Todd and The Leader ran a series on the nickel-laced soils of Port Colborne. Although it didn't attract much media attention outside the community, the Todd's reportage lifted the lid on the subject in the town.
  By the beginning of 2000 it had become apparent that the soil contamination issue posed a major challenge to Port Colborne. Residential and commercial expansion was stalled, property values were threatened, and even if there were no health hazard the condition created serious uncertainty about the Port's future.
  It was about this time that civic leaders, working with Inco and the MoE, decided to adopt a novel, if controversial, strategy to deal with the contamination question, and a beast known as the Community Based Risk Assessment (CBRA) process was born.

III. My Consultant Will Call Your Consultant
  Perhaps because it is intended to attenuate conflict and therefore lacks drama, the CBRA has received little coverage outside the Port Colborne media. Even so, it may be the most important new development to emerge from the Port Colborne pollution story.
  If it proves successful, you can expect to see the CBRA process repeated throughout North America in other situations where there may be potential environmental hazards, including Sudbury.
  Did I say the CBRA lacked drama? Watching paint dry would be more exciting, and a damned sight faster, too, although if you like acronyms, you'll love the CBRA.
  At the heart of the CBRA is the PLC (the Public Liaison Committee), which is, in theory at least, comprised of a cross section of the Port Colborne population. Once having identified the CoCs (Contaminants of Concern), the PLC will oversee both an HHRA (Human Health Risk Assessment) and an ERA (Ecological Risk Assessment).
  The ERA will draw on the NHIC (Natural Heritage Information Centre) and the NHID (Natural Heritage Information Database) to determine VECs (Valued Ecological Components) along with ANSIs (Areas of Natural Significant Interest) and ESAs (Ecologically Significant Areas), which will then be closely studied to determine what, if any, impact Inco's pollution has had.
  The major proponents of the CBRA are the City of Port Colborne, the Ontario Ministry of the Environment, and Inco itself. The entire process is dedicated to transparency and public input and is funded primarily by Inco.
  After leaving Craig Edwards' driveway I wound up attending a Technical Sub-Committee meeting of the PLC. The meeting began at 6 p.m., and ended at around 11 o'clock at night.
  Although the session appeared to be well attended by community members, I'd estimate that 90 per cent of the talking was done by employees of two consulting firms, Jacques Whitford and Beak.
  Jacques (pronounced JAKES) are Inco's consultants. Beak are the public's consultants, though they, too, are paid by Inco, but through the City of Port Colborne. Inco is supposed to have no control over Beak, and at times the latter consultants were clearly at odds with the former consultants during the meeting.
  The idea is that, using public input, a risk assessment of Inco's pollution will be scientifically conducted, at company expense. The resulting science will be peer reviewed, and based upon it the PLC will make recommendations to the Ministry of the Environment and the company concerning remediation efforts.
  It's a "come, let us reason together" approach clearly intended to head off splashy headlines and messy lawsuits, both of which it has so far manifestly failed to do, even though it has doubtless cost Inco several millions of dollars so far.
  One of the CBRA's principal municipal proponents is Port Colborne city planner Chuck Miller, who candidly admitted over a beer after the meeting that he fully expects the PLC's findings will produce new nickel level guidelines specifically tailored to the area's soils and conditions.
  These new guidelines, he's confident, will be much more liberal than the current levels. This is a subject of more than passing concern to Miller, who sees Inco's policy of land acquisition as a threat to future town expansion.
  But two big problems are already apparent with the CBRA. The first is what I call "the diverging timelines factor." I come across an early summary of the CBRA which estimates "that the entire process will take 1-2 years."
  The PLC began its work last May, almost a year ago. But when I ask the technical sub-committee members how much longer their work will take, they tell me "eighteen months to two years."
  The passage of real time, in other words, has produced timelines greater than the time elapsed. At this rate the CBRA will never finish its work, a phenomenon I have seen before - at Inco's Voisey's Bay development.
  The second problem is the class action suit, the very adversarial approach the CBRA is designed to eliminate. At last week's meeting the MoE rep told the committee he will not be able to report on the Rodney Street situation because the Ministry's behaviour is now sub judice.
  Likewise, Jacques concedes they are now uncertain how to answer certain of the Committee's questions without first consulting with "our clients", Inco. In turn, Inco will presumably have to consult its legal counsel, development that can only be expected to lengthen the CBRA's already unwieldy timelines even further.

IV. A Duty of Care
  The Statement of Claim filed by the Augustines contends that, on several fronts, Inco "breached a duty of care" owed to them by the company.
  Whether that is, in fact, the case, and whether nickel and its compounds represent a health hazard to people residing in places like Port Colborne, Sudbury, and Thompson will doubtless be determined in the fullness of time.
  I met with Allan and Monika Augustine before leaving Port Colborne on Saturday morning. Their old farmhouse was a beehive of activity, as environmental activists arrived and departed.
  Allan hinted his family's lawsuit may be entering a negotiation phase that could see it settled out of court. The terms of any such settlement would, of course, be a closely guarded secret.
  Keeping secrets would be nothing new for Allan and Monika Augustine. The discovery phase of their lawsuit has been pretty much completed, as has the forced disclosure of confidential company documents pertaining to the Port Colborne operations.
  The contents of those documents are secret, too, and Allan will only say that, in his opinion, Inco will never let the suits against it be brought into open court; the facts he has already been privy to are far too damaging for that.
  The $750 million class action suit is said to have supporting evidence from a senior company executive, now retired. Visions of Hollywood movies like The Insider, Erin Brokovitch, and A Civil Action abound. The comparisons may or may not be apt.
  But, four days in Port Colborne showed me one thing: everyone I spoke to there is convinced that it's only a matter of time before the issues they're now confronting arise, with a vengeance, here in The Nickel Capital of the World.
  Oh, and there is one other thing I am certain of: the people of Port Colborne have let a genie out of the bottle, and wherever all of this is heading, that particular genie will never be put back into that bottle.

Mick Lowe is a Sudbury-based freelance writer and columnist.

Posted: April 24, 2001

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