erne Court of Nova Scotia Michael MacKay Plai and Nova Scotia Power Incorporated Defendant Notice of Action

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1 ( 20:11 NOV 0 3 Z011 Pic No. PFHrfHONOT AR~u erne Court of Nova Scotia Be ween: Michael MacKay Plai and Nova Scotia Power Incorporated Defendant Notice of Action Proceeding under the Class Proceedings Act, 2007, c. 28. s. 1 To: The Defendant Richard J. Smith c/o Nova Scotia Power Incorporated 1894 Barrington Street, 18th Floor P.O. Box 910 Halifax, NS B3J 2W5 Action has been started against you The plaintiff takes action against you. The plaintiff started the action by filing this notice with the court on the date certified by the prothonotary. The plaintiff claims the relief described in the attached statement of claim. The claim is based on the grounds stated in the statement of claim. Deadline for defending the action To defend the action, you or your counsel must file a notice of defence with the court no more than the following number of days after the day this notice of action is delivered to you: 15 days if delivery is made in Nova Scotia 30 days if delivery is made elsewhere in Canada 45 days if delivery is made anywhere else.

2 Judgment against you if you do not defend The court may grant an order for the relief claimed without further notice, unless you file the notice of defence before the deadline. You may demand notice of steps in the action If you do not have a defence to the claim or you do not choose to defend it you may, if you wish to have further notice, file a demand for notice. If you file a demand for notice, the plaintiff must notify you before obtaining an order for the relief claimed and, unless the court orders otherwise, you will be entitled to notice of each other step in the action. Rule 57- Action for Damages Under $100,000 Civil Procedure Rule 57 limits pretrial and trial procedures in a defended action so it will be more economical. The Rule applies ifthe plaintiff states the action is within the Rule. Otherwise, the Rule does not apply, except as a possible basis for costs against the plaintiff. This action is not within Rule 57. Filing and delivering documents Any documents you file with the court must be filed at the office of the prothonotary, at 69 Water Street, Pictou, Nova Scotia, telephone# (902) When you file a document you must immediately deliver a copy of it to each other party entitled to notice, unless the document is part of an ex parte motion, the parties agree delivery is not required, or a judge orders it is not required. Contact information The plaintiff designates the following address: MacGillivray Injury & Insurance Law 134 Provost Street, P.O. Box 753 New Glasgow, Nova Scotia B2H 5G2 Documents delivered to this address are considered received by the plaintiff on delivery. Further contact information is available from the prothonotary. Proposed place of trial The plaintiff proposes that, if you defend this action, the trial will be held in Pictou, Nova Scotia.

3 Signature Signed October 31 5 \ MacGillivray Law Office Incorporated 134 Provost Street, PO Box 753 New Glasgow, Nova Scotia B2H 5G2 Solicitor for the Plaintiff Prothonotary's certificate I certify that this notice of action, including the attached statement of claim, was filed with the court on -rwut4?1/jtv, 20ll._C_. J~p/ f. I d_{!~ Prothonotary 7

4 Form 4.03B Statement of Claim DEFINED TERMS Proceeding under the Class Proceedings Act, 2007, c. 28, s.l 1. The following terms used in this statement of claim have the meanings below: (a) (b) "Act" means the Class Proceedings Act, 2007, c. 28, s.1; "Class" or "Class Members" means: All persons owning or occupying property, excluding commercial and agricultural property, since 2001, within the Town of Trenton, and the neighbouring communities of Greenspoint, Marshalls Crossing, Chance Harbour Road (ending at coordinates 45 39; 39.48N, 62 37; 35.34W), Hillside, Little Egypt Road (ending at coordinates 45 38' N, 62 35' 35.60W) and Pictou Landing Road (ending at coordinates 45 40' 1.41N, 62 41' 27.97W), in the Province of Nova Scotia, or where such a person is deceased, the heir(s), executor(s), administrator(s), assign(s) or personal representative(s) of the estate ofthe deceased person; (c) (d) "Fly-ash" means air emissions from the Trenton Power Plant (defined below) composed of mostly Arsenic, Cadmium, Chromium, Dioxans and furans, Hexachlorobenzene, Hydrochloric acid, Lead, Manganese, Mercury, Nickel, Oxides of Nitrogen, Sulphur dioxide, Sulphuric acid, Vanadium and Zinc, which can appear like dark ash when it settles to the ground; "Home" or "Homes" means the land and dwellings owned by Class Members, including chattels located on the property such as automobiles, pools and children's toys. (e) "Judicature Act" means section 41 of the Judicature Act, R.S.N.S. 1985, c. 240; (f) (g) (h) "NS Power" means the defendant, Nova Scotia Power Incorporated; "Trenton Power Plant" means the coal burning power generating station owned by NS Power and located at Main Street, Trenton, Nova Scotia. "Trenton" means the Town of Trenton and the neighboring communities of Greenspoint, Marshalls Crossing, Chance Harbour Road, Hillside, and Little Egypt Road ending at the coordinates described above.

5 THE PARTIES 2. The Plaintiff, Michael MacKay resides at 4621 Pictou Landing Road in Trenton, Nova Scotia. 3. The Defendant, NS Power, is a Nova Scotia Limited Company registered to carry on business in Nova Scotia as a producer and distributor of electricity. The Defendant's recognized agent is Richard J. Smith who has a registered office located at 1894 Barrington Street, Eighteenth Floor, Halifax, Nova Scotia, B3J 2W5. NATURE OF THIS CLASS ACTION 4. The Plaintiff seeks to certify this action as a class proceeding and pleads the Act as providing a basis for such certification. The Plaintiff, as the Representative Plaintiff, does not have any interest adverse to any of the members of the proposed class. The Plaintiff states that there is an identifiable class that would be fairly and adequately represented by the Plaintiff. The Plaintiffs claims raise common issues with all Class Members and a class proceeding would be the preferable procedure for resolution of these issues. 5. The Plaintiff proposes to bring a class proceeding on behalf of himself and the Class for damages arising from the operation of the Trenton Power Plant by NS Power. 6. NS Power emits Fly-ash from its Trenton Power Plant onto the lands of Class Members. NS Power is liable for its actions in nuisance, strict liability, trespass, and negligence. 7. The Plaintiff and many other members of the proposed class originally commenced claims against NS Power in 2005 as individuals (S.P. No ). Since that time the Act was introduced in Nova Scotia, the Plaintiff and others now feel that justice will be better served by commencing a claim under the Act.

6 FLY ASH IS TOXIC 8. As to the composition of the Fly-ash, the Plaintiff relies on information from Environment Canada's publicly funded and accessible website including the National Pollutant Release Inventory ("NPRI"), a legislated, nationwide, publiclyaccessible inventory system, which indicates between 2002 and 2010 the following airborne emissions originated from the Trenton Power Plant: Arsenic (and its compounds) Cadmium (and its compounds) Chromium (and its compounds) Dioxins and furans Hexachlorobenzene Hydrochloric acid Lead (and its compounds) Manganese (and its compounds) Mercury (and its compounds) Nickel (and its compounds) Oxides of nitrogen (expressed as N02) PM- Total Particulate Matter PM 1 o - Particulate Matter <= 1 0 Microns PM2s- Particulate Matter <= 2.5 Microns Sulphur dioxide Sulphuric acid Vanadium (except when in an alloy) and its compounds Zinc (and its compounds) 9. In 2001, Environment Canada conducted an assessment of metal concentration in lichens living in the vicinity of the Trenton Power Plant. Lichens are plants which attach to rocks and get most of their nourishment from the air. The purpose of the study was to determine if the Trenton Power Plant was contributing significantly to metal concentrations in the local air shed. Results of the study's findings were published in 2005 and revealed that lichen located close to the Trenton Power Plant contained higher levels of lead and arsenic than those located further away. In other words, in most cases, the closer the lichen was to the plant, the higher the level of lead and arsenic.

7 10. In 2007, Trium Environmental Solutions Inc. conducted a human health risk assessment for the Town of Trenton. The study focused on human exposure to hazardous metals and hydrocarbons which are known to comprise coal ash. Trium analysed surface soil, indoor house dust, and metals found in green leaf lettuce in several homes in Trenton, and at background locations outside of Trenton, but in Pictou County. Findings from the study were reported on May 14, 2008 and revealed that the levels of lead, arsenic and beryllium found in Trenton during the study period far exceeded Health Canada Guidelines. The study concluded that exposure to these elevated levels of arsenic and lead may cause adverse health effects to Trenton residents, and exposure to the elevated arsenic and beryllium levels present a cancer risk to Trenton residents. 11. In 2010 toxicologist Dr. Wayne Roth-Nelson performed an environmental health risk analysis. This study concluded that community exposures to arsenic and lead originating from the Trenton Power Plant can likely lead to illness or disease in the community of Trenton. The study concluded that the adverse health effects are from the carcinogenic impact of arsenic and the neurotoxic impact of lead. The lead and arsenic being released into the air and then deposited on downwind surface soils, transferred indoors and mixed with house dust, with outdoor and indoor inhalation, absorption through skin, and oral ingestion. TRENTON IS CONTAMINATED WITH LEAD AND ARSENIC EMITTED BY NS POWER 12. This action therefore arises out of NS Power's operation of the Trenton Power Plant and the associated discharge of Fly-ash into Trenton's environment. The plant has emitted tonnes of Fly-ash which has landed on the Class Member's homes and continues to do so. Despite periodic reported improvements to the Trenton Power Plant, to this date NS Power has failed to rectify the problem. The Plaintiff and other members of the Class continue to experience Fly-ash

8 DAMAGE TO PROPERTY VALUES 13. The property owned by the Class is located within the area that the Trium and Roth-Nelson studies suggest is contaminated with lead and arsenic. The NPRI has publically accessible information on the internet detailing the amount of air borne emissions. The 2005 published Environment Canada study demonstrated a close to logarithmic relationship between levels of lead and arsenic in lichen in comparison to the distance from the Trenton Power Plant. 14. The property owned by the Class has been negatively impacted by the media coverage surrounding the Fly-ash problem including press releases from NS Power, a multitude of newspaper articles, and newspaper photographs of the Flyash on the ground. The media coverage is generally necessary, often helpful to the plight of the Class, and accurate. However, the reality of the Class Members' homes being contaminated and exposed to failings of fly ash has a detrimental effect on the value of the Plaintiff's homes. 15. In contrast to comparable real estate markets in municipalities such as Stcllarton and New Glasgow, the rate of appreciation in the values of properties owned by the Class has declined as a result of the Fly-ash and associated contamination. 16. NS Power operates the Trenton Power Plant in full knowledge of the ongoing release of Fly-ash into the Trenton environment. The property owned by the Class is within close geographic proximity to the Trenton Power Plant. 17. The Plaintiff claims on behalf of the Class for diminution in property values resulting from media coverage of the Fly-ash problem, press releases from NS Power, the physical appearance of the Fly-ash on Class members' properties, and the fact that there is contamination from lead and arsenic on the lands owned by the class. As the source of the Fly-ash, NS Power must compensate Class Members for their loss.

9 NS POWER IS LIABLE IN NUISANCE 18. The ongoing release of Fly-ash from the Trenton Power Plant has substantially and unreasonably interfered with the Class Members' use and enjoyment of their homes. The Fly-ash is dirty, unsightly, difficult to clean, unhealthy and has detrimentally impacted the value of the Class Members homes. Therefore, NS Power is liable to the Class Members in nuisance. NS POWER IS LIABLE IN TRESPASS 19. NS Power is liable in trespass, NS Power has discharged and continues to discharge Fly-ash onto the Homes owned and occupied by Class Members thereby directly interfering with and damaging these lands. NS POWER IS LIABLE UNDER THE DOCTRINE OF RYLANDS V. FLETCHER 20. NS Power is liable pursuant to the doctrine of strict liability m Ryland~ v. Fletcher, in that the release of Fly-ash is a non-natural use of the lands owned by NS Power upon which the Trenton Power Plant operated, and NS Power has failed to prevent the escape of these dangerous substances, thereby causing damage to the Class Members. NS POWER IS LIABLE IN NEGLIGENCE 21. Trenton Power Plant is in such close proximity to the Class Members property that NS Power owes a duty of care to the Class and their property. 22. NS Power provides ninety-five per cent of the generation, transmission and distribution of electricity in Nova Scotia. NS Power uses a mix of resources including hydro, tidal, wind, coal, oil and natural gas all to generate electricity. The Trenton Power Plant uses a coal fired electrical generator. NS Power is subject to the standard of care expected of other producers of electricity who use coal fired generators.

10 23. The amount of Fly-ash that emanates from the Trenton Power Plant, as well as the frequency by which it is emitted, is substandard in comparison to other coal fired power generating stations operating within Canada or the United States. NS Power has breached the standard of care owed to the Plaintiff and other members of the Class by operating an antiquated facility that permits high levels of air borne releases of toxic heavy metals, fly ash, which lands on the homes of the Class Members. As a result, NS Power is liable to the Class Members in negligence. PUNITIVE DAMAGES 24. NS Power operates the Trenton Power Plant with full knowledge of the fact that it is emitting Fly-ash that causes extensive damage of the property of Class Members. Allowing these toxins to be released onto the lands and into homes of Class Members for the economic gain of the Defendant is conduct meriting the condemnation of the community. This is particularly so where the means to prevent these releases has been available to NS Power for many years but they have failed to take measures to prevent these releases out of economic convemence. 25. These activities were carried out with callousness and reckless disregard for the health and well-being of Class Members including infants and children. 26. The Defendant is deserving of sanction by an award of punitive damages commensurate with the Defendant's behaviour. The Defendant and others should be deterred from conduct that gives corporate profits and shareholder gains priority over the health and rights of people. RELIEF SOUGHT 27. Pursuant to the Act, the plaintiff claims on behalf of Class Members: (a) an Order certifying this proceeding as a class proceeding and appointing the Plaintiff as Representative Plaintiff for the Class;

11 (b) (c) (d) (e) (f) (g) general damages caused by nuisance, strict liability, trespass, and negligence; damages for the drop in the rate of appreciation in the value of the Class Members' homes, that is, for diminution in the value of the Class Members' Homes; punitive damages; interest pursuant to the Judicature Act; costs; and such further and other relief as this Honourable Court may deem just. Signed October 31 5 \ '- -~ eacgillivra Y \ MacGillivray Law Office Incorporated 134 Provost Street, PO Box 753 New Glasgow, Nova Scotia B2H 5G2 Solicitor for the Plaintiff