Text of the Penobsquis report and comments

Recently, the Mining Commissioner of the Province of New Brunswick released his report on the complaint by residents of the Penobsquis area regarding damage to their property they claimed was the result of mining activities by the Potash Corporation of Saskatchewan.

As is detailed below, the Commissioner’s report deals mainly with a land subsidence claim put forward by some residents. Water damage claims were withdrawn – some reasons for that withdrawal are given here. The whole story is quite an indictment of the Province’s apparent complete lack of regard for the concerns of its citizens. In short, the Province has failed to show that it ‘has the people’s back’. That, in fact, is the most alarming aspect of this decades-old story. I am not in a position to evaluate the damage claims made by Penobsquis residents, but the’ hands-off’, ‘let the lawyers decide’ attitude of successive Provincial governments is chilling.

The text of the Commissioner’s report is below. This text was formatted for this website from a PDF version of the report. Some errors may have been introduced during this formatting – for those, I apologize (please send me an email if you find errors that mislead).

I am not a mining expert and cannot comment on the technical issues here. But I will make the following comments:

1. The Mining Commissioner appears to be a lawyer and there is no evidence that he has sufficient technical backgound to judge the merits of the evidence before him. Given the powers of the Commissioner, it seems to me that it would be preferable (and more fair) if the Commissioner had considerable technical backgound in the issues at hand, but had access to legal advice where needed. Here we have the opposite – in fact, it is worse than the opposite as there is no evidence that the Commissioner had access to any independent technical advice.

2. The Mining Commissioner’s office seems to be invisible. I cannot find any offices or staff listed at the GNB website. There is no obvious location provided by GNB where citizens can obtain hearing transcripts, rulings, or any information pertaining to making claims or information regarding claims. When I requested a copy of the Penobsquis ruling, the media person at the Dept of Energy and Mines forwarded me a PDF that was created from a fax sent from the Dalhousie office of the lawyer acting as Mining Commissioner! Given the history of mining in NB, that is unacceptable.

3. The only witnesses found to be ‘expert’ in the issues at hand were those brought forward by the Potash Corporation. Once the Commissioner ruled that these witnesses, but not those of the residents, were experts then the decision became a foregone conclusion. The evidence of the experts will be given more weight than testimony of those not regarded as experts. This is where the lack of independent technical advice to the Commissioner is critical. There seems to be as assumption that both parties will have equal access to technical experts. One party, however, may lack that access either because of funding issues, or because the party’s position just has no merit.

4. The Province is now drawing up new regulations regarding the shale gas industry. The Penobsquis story has illustrated a huge gap between the reassurances given by politicians and reality. To move forward and regain the public’s trust, the Province needs a transparent, accessible process to fairly evaluate claims of damage. The regulatory authority needs to have access to independent technical advice such that poorly funded claimants can adequately present their case. The authority also needs to be able to proceed in a timely manner, such that proper claims can be settled quickly. This will cost money, and the industry and/or royalty revenues will need to pay up front (through trusts or some other mechanism) to support these activities.

____________________________________________________________________

PROVINCE OF NEW BRUNSWICK

IN THE MATTER of a Complaint pursuant to the Mining Act, S.N.B. 1985, c. M-14.1 BETWEEN:

ELIZABETH NIXON & KEVIN NIXON, BRENDA LEE MORRELL & CYNTHIA McEWAN, CHRISTINE BELL & WAYNE BELL, MAUREEN FITZGERALD, CARL ROUSE & MARGARET ROUSE, GARY THOMAS, HEATHER McCABE & MYRTLE McCABE, JAMES McKNIGHT & APRIL McKNIGHT, GORDON FRASER, GARNETT SALTER & . JANE SALTER, MEGAN ARSENEAULT, MARY NORRAD & BETH NORRAD, JAYNE McQUINN, RALPH FANJOY, RON SMITH AND HERMAN HAWTHORNE & RENA HAWTHORNE,

Complainants,

-and-

POTASH CORPORATION OF SASKATCHEWAN INC.,

Respondent.

Before: Roderick P. Duguay, Mining Commissioner,

For the Province of New Brunswick, Public Hearing;

Place: Sussex, New Brunswick;

Appearances/Dates: Michel DesNeiges- Counsel for the Complainants,

Elizabeth Nixon et al on March 16; May 16, 17, 18, l9, 20, 25, June 20th 21, 22, 2011

Martin Aubin- Counsel for the Complainants,

Christian Bell, Wayne Bell, Gary Thomas and Jaire McQuinn- on  March 16th; May 16th 17th 18th, 19th, 20th and 25th,June 20th, 21st, 22nd, 2011.

Herman Hawthorne, Cynthia McEwan and Elizabeth (Beth) Nixon, an appointed committee for the Complainants Elizabeth Nixon et a! with substitutes Brenda Lee Morrell, Beth Norrad and Mary Norrad appointed for September 14th, October 12th, 13th, 14th, 26th, 27th, 28th, November 9th, 10th, 2011; April17th, 181h; May 2nd; June 20th,21st, 22nd, 27th, 28th, 29th, July 4th, 5th, 6th, 11th, 12th, 13th, September 10th, October 1st 2012.

Herman Hawthorne and Brenda Lee Morrell an appointed Committee for the Complainants Heather McCabe and Myrtle McCabe if Heather McCabe and Myrtle McCabe are unable to attend the Hearings for September 14th, October 12th, 13th, 14th, 26th 27th, 28th November 9th 10th 2011, April 17th 18th, May 2nd, June 20th, 21st, 22nd, 27th, 28th, 29th, July 4th, 5th, 6th, 7th, 12th, 13th; September 10th; October 1st, 2012;

Peter T. Zed, Q.C.- Counsel for the Respondent,, Ashlee E. Scott, Patrick J. Dunn.

Date of Decision: January 31″, 2013.

DECISION OF THE MIINING COMMISSIONER

Background: 1. This matter came before me by way of an application, (complaint) dated July 15th, 2010 under Section 13 of the New Brunswick Mining Act, specifically; subsection 13 (l)(c) of the Act to conduct artd carry out a Hearing in the matter between 25 Complainants artd owners of surface rights on their land in Penobsquis, NB, and Potash Corporation of Saskatchewan Inc., the holder of a Mining Lease. The Complainants state that they have suffered and continue to suffer from various damages including loss of their well water, health problems, anxiety, exposure to  noise, artificial light and dust and interference with the use and enjoyment of their properties arising out ofthe Mining activities of Potash Corporation of Saskatchewan Inc., at their Mining operations in Penobsquis, New Brunswick The Complainants are seeking an Adjudication under the Mining Act and compensation.

2. In regards to Jurisdiction in this matter; Both Counsels for the Complainants, Michel DesNeiges and Martin Aubin as well as counsel for the Respondent, Peter T. Zed,.Q.C., agreed that I had the power to hear the Complaint under The Mining Act of New Brunswick, and to award monetary damages if the facts presented themselves.

3. I received a letter signed by Counsel Michel DesNeiges and dated August 16th, 2011 that he had been dismissed by the Complainants. I also received a letter signed by Counsel Martin Aubin and dated September 12th, 2011, that he had been dismissed by the Complainants he represented.

4. On September 14th, 2011 at the Hearing I was informed that Herman Hawthorne, Cynthia McEwan and Elizabeth (Beth) Nixon were the appointed committee for the Complainants Elizabeth Nixon et al with substitutes, Brenda Lee Morrel, Beth Norrad and Mary Norrad if needed.

5. Herman Hawthorne Wld Brenda Lee Morrell were appointed Committee for the Complainants Heather & Myrtle McCabe if either were unable to attend the Hearing on a certain date.

6. On June 27th, 2012, Solicitor Brenda Lutz, Q.C., presented herself at the Hearing in Sussex. She stated she was retained by Solicitor Andrew Brown to act as an Agent and serve as Legal Counsel for the Complainants. She gave evidence at the Hearing to the effect that all the Complainants had withdrawn their claims on a with prejudice basis in regards to all Water issues including loss of well water and its inconveniences, noise, dust and blasting and all its inconveniences. The parties agreed no costs would be sought in respect of the settled complaints.

7. Therefore, the only issue before me as Mining Commissioner now is to decide upon the issue of Subsidence as all other issues (claims) have been withdrawn as a settlement had been reached between all the Complainants and Potash Corporation of Saskatchewan Inc.

8. On September 10th, 2012, Elizabeth (Beth) Nixon presented herself at the Hearing in Sussex and stated in to evidence that the majority of the Complainants would be withdrawing their claims in regards to the remaining issue of Subsidence. This withdrawal was done on a with prejudice basis on the record at the hearing in front of me and as well by way of written signed letters indicating the same type of withdrawal.

FACTS:

9. Therefore, the only remaining claims for determination by myself as Commissioner are those of Beth Norrad, Heather McCabe and Myrtle McCabe relating to the issue of Subsidence found at paragraphs 27, 28, 29, 35, 39, 44 and 45 of the Complaint.

10. The three remaining Complainants allege at paragraph 27 of the complaint that, between September I”, 2004 and July 15th, 2010. PCS, while operating potash and salt works on the land beneath and adjacent to the Complainants’ land, extracted minerals and pumped brine from certain mine workings resulting in subsidence of the Complainants’ land and premises that has created uneven surface, cracks and fissures in the homes and premises of Complainants Heather McCabe, Myrtle McCabe and Beth Norrad, thereby depriving them of their right to the quiet use and enjoyment of their properties and violating their right not to be subjected to interference with the support of the water under their respective lands.

11. The Complainants also allege at paragraph 28 of the Complaint that the same activities of PCS have resulted in subsidence of the Complainants lands that has created uneven surfaces, sloping of the laud and sink holes on the properties of Complainants Heather McCabe, Myrtle McCabe and Beth Norrad, thereby depriving them of their right to the quiet use and enjoyment of their properties and violating their right not to be subjected to interference with the support of the water under their respective lands.

12. The Complainants further allege at paragraph 29 of the Complaint that as a result of the effects on their lands and buildings, all of their properties have been rendered significantly less desirable and their market values have been considerably reduced.

13. The Complaints allege at paragraph 35 of the Complaint that they have suffered and continue to suffer considerable anxiety including a great sense of frustration as a result of their inability to fully enjoy and benefit from the use of their properties, and anxiety related to the uncertainty about the future of their property investments in Penobsquis.

14. The Complainants have therefore claimed the following relief at paragraph 39, 44 and 45 of the Complaint:

– Compensation for:

Loss of quiet use and enjoyment of their properties; Diminished property values; All damages past, present and future; – the return of their land to its natural state; and – interest on damages.

15. In addition, the Complainants claim any other relief deemed property by the Commissioner, and their costs of these proceedings.

16. The Complainant, Beth Norrad testified at the Hearing on June 20, 2011. She gave evidence with respect to damage to her property alleged to be caused by subsidence. She stated her property was situated in Penobsquis at 12412 Route ll4 (PID 127253). She testified that she resides at the home with her sister Mary and she did live in the home during the period covered by the Complaint. She testified that the house was probably built in the early 1960’s as it contained a cold war era bomb shelter.

17. Beth Norrad introduced into evidence a series of 34 photographs of the house and property including her garage which were marked as Exhibit “AA”. She stated the house and property were “immaculate” when she and her sister purchased it in 2007. She stated she did not have a home inspection done.

18. Beth Norrad stated that she got work done in the basement as she constructed an Apartment there.

19. She described her biggest issue as “events” in which the house would move and shake. In September 2009, she experienced and event in which her house tipped toward the South East. She stated that while she is sure the garage floor was cracked before the September 2009 ”event”, the crack worsened at that time. She stated leaking in her basement now flows South East.

20. Beth Norrad also testified as to three additional shaking events in December 2009, October 2012 and Spring 2011 which were accompanied by a “boom” sound. After the last event she said the ceiling tiles inher basement became “wonky”.

21. Ms. Norrad testified that she has a waterfall underneath a tree on her property and that Mr. Brian Roulston from P.C.S. informed her of that. She testified that her property is sinking and gave as examples a shallow hole in her front yard and a deeper hole in her back yard. She stated her newly installed porch snapped off the home during the September 2009 ”event’.

22. She also testified that she was having a hard time to sell the property and she asked Brian Roulston of P.C.S. to purchase it. He said sorry, but we’re not in the Real Estate business and we don’t want to set a precedent.

23. The Complainant, Heather McCabe testified on June 22nd, 2011. She gave evidence with regard to damage to her property alleged to be caused by subsidence. She stated her property was situated in Penobsquis at 10 Clover Lane (PID 30205355) and she moved there in September 2003. She lives there with her mother and runs a dog/animal rescue shelter.

24. Heather McCabe presented into evidence a package of 34 pictures of her home and property that was marked Exhibit “JJ”. She testified that beginning in the Spring of 2005, the chipboard skirting under her 1987 Kencraft mini home started to tilt upwards. She described calling PCS and having Bob Owen and Brian Roulston visit her home in Spring 2009 or 2010 to address her concerns that damage to her home was caused by subsidence, Mr. Roulston told her that the damage to her home was not due to subsidence, but appeared to result from incomplete eavestroughing, which allowed water to come off the roof and form an ice buildup, which lifted up the skirting.

25. She described bulging walls, a shifting doorframe, a cracked wall, a smell of mold and mildew in her home and a bowing of sagging roof. Around late summer of 2005, her back stairs started to shift, to the extent that the railing was blocking her back door.

26. With the help of friends, she built a new deck on the back of the house, level with the back door and flush with the house. She stated that she has had to remove portions of the bottom of her back door, because the door has lowered relative to the deck surface. There are now gaps between the deck and the house, where before she states that it was flush.

27. Heather McCabe testified that her kitchen counters are pulling away from the wall and there is mold in her cupboards and drawers.

28. Ms. McCabe stated that her land is no longer draining properly, as the backyard no longer slopes away from the house as it used to. She has noticed “dips” or “gullies” in the land that were not there before, although she admits some could be attributed to land usage. This has resulted in water accumulating under her house.

29. Ms_ McCabe testified that a hole had developed in the floor of her front entrance where the floor has rotted.

30. She states she had problems closing her manual garage door in the winter of 2010-20l1, and had to disassemble it. She states there is a gap between the door and the wall that was not there when she purchased the property in 2003.

31. Complainant Myrtle (Georgia) McCabe, Heather McCabe’s mother, who resides with her daughter at 10 Clover Lane, Penobsquis testified that she suffers from a number of ailments, all of which she attributes to stress due to the situation she and her daughter are presently in.

32. The Complainants also called 15 witnesses that were employed by the Government of New Brunswick. However the vast majority of their evidence was in respect to Water Issues which were resolved by the Complainants and Potash Corporation of Saskatchewan Inc. Many of the 15 Government witnesses were asked questions about sinkholes and subsidence but none were qualified as an expert in subsidence to answer the questions as subsidence was not their field of expertise.

33. The Complainants did however call two witnesses to testify as to the magnitude of subsidence in the Penobsquis area pertaining to its causes and its effect on the Complainants land and premises.

34. Mark Connell testified on behalf of the Complainants. He is a Geologist and has been since 1960. He was not qualified to give expert opinion evidence with respect to subsidence. This witness did not have a PhD. and had never testified as an expert before; and never published any papers on subsidence and had no academic background or practical experience in the field of subsidence therefore he was not qualified as an expert witness.

35. Mr. Connell gave a presentation at the hearing titled “Causes and Effects of Primary and Secondary Subsidence and Inadvertent Dissolutions Processes at the PCS Penobsquis Mine”, (Exhibit “TT”). His presentation was intended to outline the rudiments of the geology at the mine and surrounding area that world cause the sinking landscape, a lowered water table and possible dissolved underground cavities. He spoke generally about the process by which mining activities cause subsidence of land, and illustrated this process with diagrams depicting subsidence over coal mines. Turning to the specifics of the situation at the Penobsquis mine, he adapted a diagram from the Canadian Centre for Geodetic Engineering (“CCGE”) showing the zone of primary subsidence over the mine workings, and speculated that a zone of secondary subsidence observed north of the mine workings was caused by drawdown of the water table due to water inflow into the mine and dissolution of salt as the water flows into the mine.

36. Mark Connell did not testify as to the effects of subsidence on surface structures in Penobquis, New Brunswick.

37. Mr. Connell’s presentation went into detail into trying to establish a causal connection between mining activity in Penobsquis and the Complainants loss of well water, however the issue of loss of water has been resolved between the parties.

38. Mr. Connell on cross examination acknowledged that he was not an expert in subsidence and his placement of additions onto the C.C.G.E. diagram at page 16 of his presentation (“model for Subsidence Development adapted from C.C.G.E.’ was speculative as to their location.

39. Mr. Connell on cross examination also acknowledged that subsidence described or depicted at pages 12 to 14 of his presentation referred to different locations and different mining methods than are in use at the Potash Corporations Mine in Penobsquis and he acknowledged that he did not examine the hole shown in photograph at page 24 of his presentation (Exhibit “TI'”‘) to determine if indeed it was a sink hole.

40. Lawrence Wuest also testified on behalf of the Complainants. He has done graduate work at the U.N.B. Faculty of Forestry and Environmental Management. He stated his skill was developing spatial analytic methods for investigating inter-relationships of vegetation, environment and wildlife within New Brunswick, Canada. Mr. Wuest has several publications to his credit but none on subsidence. He has never been qualified as an expert before and he has never testified in court or at any hearing as an expert therefore I ruled he was not an expert witness pertaining to the issue of subsidence.

41. Mr. Wuest presented evidence by way of a Report dated March 16th, 2012 (Exhibit “WW”) in regards to “Cartographic Assess,,ment of Architectural, functional and Structural risk to houses and related infrastructure at Penobsquis, NB based on reported subsidence above the Potash Mine underlying the Community”. He prepared a presentation summarizing his findings {Exhibit “XX).

42. Mr. Wuest acknowledged he had not dealt with subsidence before this report (Exhibit “WW”) and that he has no education or formal training in rock mechanics, ground deformation or engineering.

43. Mr. Wuest in preparing his presentation used information and findings from several reports and papers such as but not limited to Waddington, Singh, Golder, Jacques Whitford and Adam and Anna Chrzanowski and formed his own professional opinion, not expert opinion.

44. Mr. Wuest relied entirely on data collected by CCGE over the course of 20 years of subsidence monitoring in Penobsquis. He conducted spatial analysis of the CCGE data to determine to the spatial distribution of vertical subsidence and horizontal displacement. He concluded that values for tilt, horizontal strain, and ground curvature in Penobsquis, which he derived from the CCGE data, have been associated with damage requiring repair. He found that in the area of highest tilt, it reaches a maximum of 2.5 mm/m. He found the maximum value of horizontal strain was 1.4mm/m. he found that the radius of curvature in certain monitored locations ranged from 15 km to 50 km, but cautioned that the spotty nature of most of these areas of elevated risk and their association with survey points suggest a computational artifact. He reported that analytic curve fitting along two lines of subsidence movements confined radius of curvature of 28 km to 50 km.

45. His report notes at p. 16 that the uncertainty in the maximum vertical subsidence was estimated at 30% to 40%. The report goes on to state, “given the large uncertainty the actual risk could be quite a bit smaller and inconsequential or the risk could be quite a bit larger.”

46. Mr. Wuest relied on tables compiled by Arthur Waddington in 2009 and Singh in 1992 setting out categories of damage to surface structures expected as the values of tilt, strain and curvature increase, and suggested that the values he derived from the CCGE measurements could lead to legitimate claims for damage to habitation.

47. Mr. Wuest acknowledged on cross-examination that Waddington’s standards for determining surface impacts of subsidence were based on measurements made in Australia and that some of the measurements would be particular to coal mines. He also acknowledged that the table by Singh (1992) at p. 20 of his presentation was probably generated by the observed subsidence over coal mines and not Potash mines.

48. Laurence Wuest also acknowledged on cross-examination the possibility that the uncertainty rage of 30% to 40% for the values of vertical subsidence and horizontal strain could he much higher or much lower and he also conceded that there are causes other than subsidence for cracks in concrete foundations and plaster walls, and that it would require investigation by structural engineers to determine what damage was there and the likelihood it was connected to causes other than subsidence.

49. Dr. Adam Chrzanowski and Dr. Anna Chrzanowski testified on behalf of the Respondent. The Complainants and their respective Committees along with Counsel for the Respondent acknowledged and agreed that both Doctor’s Adam and Anna Chrzanowski were Expert Witnesses in the field of subsidence and would present Expert Evidence on the effects of subsidence on the surface infrastructure in Penobsquis and on the likelihood that land settlement has caused any of the damage to buildings reported by the Complainants. Therefore, for the purpose of this Hearing, both Doctor’s were considered as Expert Witnesses in the field of subsidence.

50. Dr. Adam Chrzanowski is a professional engineer with graduate degrees in mining surveying and surveying engineering. He is a professor emeritus of the Department of Geodesy and Geomatics Engineering at the University of New Brunswick, and the Director of the CCGE.

51. Dr. Anna Chrzanowski is a Senior Research Associate with the Department of Geodesy and Geomatics Engineering at UNB with graduate degrees in precision mechanics, mechanical engineering and mining geomechanics, and geomatics.

52. Both have been involved in integrated monitoring and modeling of ground subsidence in the Penobsquis Potash Mine since 1995, with Dr. Adam Chzanowski having been involved since the program’s inception in 1989.

53. They presented to me a report dated Jun 25th 2012 (Exhibits “7 & 8”) and a slide show entitled “Effects of PCS underground mining on the surface infrastructure in Penobsquis, New Brunswick”. CCGE has monitored subsidence at the Penobsquis mine site since 1989 using a network of subsidence monuments and annual leveling surveys. GPS monitoring began in 1993, supplemented in densely wooded areas by measurement of angles and distances using electronic instruments. They now have 70 points monumented. Despite difficulties in the field with monitoring points being destroyed and poor visibility to satellites from some locations, Dr. Adam Chrzanowski considers the PCS monitoring program the best in North America.

54. CCGE measurements show that the maximum accumulated vertical subsidence in the vicinity of the mine reached 0.75 min 2012. The Chrzanowski’s stated it is not the absolute depth of vertical subsidence that causes damage to surface structures. Rather, it is the differential vertical subsidence between two points (tilt), differential horizontal movements between two points (horizontal strain), and differential tilt between two points (ground curvature) that can cause damage to surface structures. It is, however, a question of degree. Below a certain magnitude, differential ground movements caused by subsidence will not damage surface structure . The possibility of damage also depends on the nature of the surface structure in question. A wood-frame residential house is less sensitive to subsidence than a large industrial facility.

55. The Dr’s. Chrzanowski used the measurements from the annual monitoring surveys to calculate ground deformation parameters, and then compared those values with accepted tolerances for these deformation parameters within which no structural damage should occur. The parameters considered were:

– Vertical displacement; – Horizontal displacement; -Tilt (differential vertical subsidence of the ground);

– Horizontal strain (differential horizontal movements, producing either tensile or compressive strain);

– Ground curvature;

56. Having considered the specifications for allowable ground deformation set in a number of jurisdictions (as Canada has no such recognized standards), the Dr’s. Chrzanowski selected the Polish standards, as these were developed not only for coal but also for metal mining and are based on similar climate conditions.

57. Based on the measurements of accumulated subsidence over the mine, and information as to the location of the Complainant’s properties, the Dr’s. Chrzanowski looked for regulations that would provide guidance on the experience of older mines in heavily populated areas as to the extent of ground deformation that surface infrastructures can tolerate before sustaining damage. They selected the Polish regulations, as these were the best documented, based on over 60 years of studies in climate conditions similar to Canada

58. Dr. Adam Chrzanowski remarked that climate conditions were an important factor, because there are seasonal natural causes of deformation of surface structures- produced, for example, by temperature changes. The Polish regulations were adapted for types of mining other than coal mining, such as metal mining. If anything, the Polish regulations yield overly pessimistic predictions for damage when applied to Penobsquis, as they are based mainly on subsidence effects on brick houses and concrete structures, and large, sensitive structures., whereas the surface infrastructure in Penobsquis consists of smaller, wood-framed residential constructions. The Polish regulations indicated that damage to small structures such as residential houses with a footprint of 10 to 15 metres is possible when ground deformation values in Category II are observed (tilt exceeding 2.S millimetres per metre, strain exceeding 1.5 millimetres per metre, and radius of curvature of 20 km or less).

59. The witnesses testified that the polish specifications divide mining areas into one of five categories based on maximum deformation parameters and they explained the significance of deformation values in each of the categories of their report as follows:

-The values of allowable tolerances for maximum tilt horizontal strain, and radius of curvature are listed in Table 2.1 for six different categories:

• If a mining terrain is classified as Category 0, the mining effects on the surface infrastructure, including large and sensitive structures, may be completely neglected.

• In the mining area classified as Category I, either no damages should be expected or hairline cracks may develop in the foundations or walls of large structures, depending o the dimensions and structural quality. Sensitive structures, large power plants, metallurgical plants, railway stations, hospitals, tunnels, gas pipelines and multistory buildings are permitted without any strengthening or special protective measures.

• Category II permits for the same structures as Category I but minor damages, easy to repair, may occur. Large and sensitive structures may require precautionary structural strengthening. Small residential houses may develop hairline cracks in the foundation and walls.

• Terrain of Category III may require partial strengthening of the structures. Structural damages most likely will occur in any type of structures by they will not be threatening the structural integrity. Large and sensitive structures and multi-story buildings are not permitted.

• Structures in the terrain of Category IV may be seriously damaged. Only small residential buildings and less important structures are permitted but they may require structural strengthening.

• Terrain classified as of Category V is considered as useless for any constructions work.

Concerning small (1-2 storey) residential houses, structural engineers in Central Europe start considering effects of ground subsidence when the deformation parameters reach values of Category II.

60. In regards to tilt, the witnesses stated the tilt of the original Complainant’s properties, based on measurements taken during the annual surveys rages from a low of 0.00 mm/m (Thomas, McQuinn House, and Arseneault) to a high of 1.0 mm/m (Smith). The measured tilt places these properties in Categories 0 and I with respect to the effects of tilt. Of the remaining Complainants, the tilt of the Norrad property was 0.2 mm/m (Category 0) and the McCabe property was 0.8 mm/m (Category I). This would not be expected to produce any damage to small residential structures. Furthermore, the points chosen for calculation of the tilt experienced by individual properties were those that would yield the maximum values. The calculations were thus conservative in favor of the home owners.

61. In regards to horizontal strain, the witnesses testified the maximum horizontal strain was calculated for the whole area under observations, as there were insufficient markers to calculate the strain with respect to each of the Complainant’s properties. The maximum tensional strain (stretching) was calculated as 0.27 mm/m. This is the measure of most relevance, since the authors note that the tensional strength of material is usually much less than its compressive strength. The whole area falls into Category 0 within respect to their effects of tensional strain. The maximal compressive strain was calculated as ranging from 0.8 to 0.9 1 mm/m for points in the corridor above the salt rooms extraction. This places properties in that corridor in Category I with respect to compressive strain. The report states that no Category II values of compressive strain have occurred.

62. In regards to Curvature, the witnesses testified that the radius of curvature was calculated for the area where it was expected to be smallest (i.e., likely to cause the most significant surface effects), This was in the vicinity of monitoring point CO north of the mine openings, the bottom of the zone of secondary subsidence. The Chrzanowski’s determined the radius of curvature at that location to be R = 90 km, which places that locations within Category 0 which respect to ground Curvature. As the authors note, there are no houses located within the vicinity of point CO. The authors state that all of the other properties would also full within Category-, as the curvature at point CO was the maximum. Therefore, there are expected to be no effects on small residential surface infrastructure where ground deformation is in Categories 0 (Norrad) and I (McCabe). The hairline cracks in foundations or walls that maybe expected to develop where deformation is within Category I are restricted to large structures. By contrast, the structures which the Complainants alleged have been damaged by subsidence ate small residential structures least likely to suffer subsidence damage. Only when the ground deformation values fall within Category II is minor damage to surface infrastructure expected to occur. For instance, small residential houses may develop hairline cracks in the foundations and walls. No ground deformation values within Category II have been observed in Penobsquis.

63. The witnesses testified that the ground deformations calculated based on the observations in Penobsquis, N .B. all fall within the categories 0 and. Their report states that no ground deformation in Category II has occurred within the monitored areas. Both Doctor Adam and Anna Chrzanowski stated and concluded that any damage to the surface infrastructure did not occur as a result of subsidence and may be attributed to other factors. They state that there are other causes for ground deformation apart from subsidence. Seasonal temperature changes, which reach up to 70°C in New Brunswick, can cause 0.7 mm/m of horizontal strain (Category I). Other natural causes include changed in geotechnical parameters of soil between dry and wet and between winter and summer.

64. The witnesses testified that they rejected the use of the Australian deformation standards selected by the Complainants witness, Lawrence Wuest on the basis that the Australian standards were developed in the context of coal mining, while the Polish standards have been the product of a multidisciplinary effort, and are more suitable to Canadian climate conditions. The seasonal temperature variation, from a low of -35 to 30°C to a high of 30°C is comparable between Canada and Poland, while in Australia the temperature differential would be half that. Natural seasonal temperature changed could produce a Category value of train (0.7 mm/m). The similarity of the climates of Canada and Poland renders the Polish tolerance values more applicable to Canada than those developed in Australia.

65. In regards to sink holes, Dr. Adam Chrzanowski testified that he would never expect sink holes as a direct effect of ground subsidence in the Penobsquis area, given that it is above salt mining at depths of 500 metres covered by cap rock.

66. Doctor’s Adam and Anna Chrzanowski at the end of their testimony and following cross examination both confirmed that their report (Exhibit 7) accurately reflected their expert views.

67. Michael Whitford also testified on behalf of the Respondent. He is vice President of Geotechinical Canada and is employed by Stantec as a professional engineer registered in New Brunswick and Maine specializing in geotechnical and environmental engineering. He has been qualified in the past as an expert in Provincial court and Court of Queens Beneh as to settlement issues, conditions of buildings and geotechnical issues. I ruled that Mr. Whitfield was qualified to give expert evidence with respect to Land Settlement and Soil Mechanics. He was not qualified as an expert in subsidence.

68. Mr. Whitford testified that the effects of settlement on buildings are the same whether the cause of the settlement is subsidence, soft soil, or an undermining issue. The fact that Mr. Whitfrrd had not dealt with settlement caused by subsidence would not therefore have any bearing on his ability to determine whether structures in Penobsquis have sustained settlement-type damage. On cross-examination, he maintained that settlement did not cause the damage reported by the Complainants, and that since subsidence leads to settlement, he inferred that subsidence did not cause the damage.

69. Mr. Whitford testified that he made a conservative assessment of the strength of the Complainant’s buildings, based on photographs and his observations on driving past them. He noted that the assessment of surface effects of subsidence could be approached either from the terrain perspective, by categorizing the extent of changes of the terrain as the Dr’s. Chrzanowski had done, or by categorizing surface structures according to their strength. The categories for strength of infrastructure proceed from high to low, 4 being best and 0 being worst. Mr. Whitford determined that the houses in Penobsquis fell into the highest two categories for stretch of infrastructure, 3 and 4, which indicated that these houses are least likely to be affected by ground changes.

70. Mr. Whitfield stated that in respect to the photographs taken by Ms. Beth Norrad and marked as Exhibit “AA” and those taken by Heather McCabe and marked as Exhibit “J.J.” he did not see any photos that he considered as depicting Structural Damage that was definitively the result of settlement issues. In his expert opinion he stated that much of the damage to concrete was due to shrinkage and the result of not having foundations property protected from frost action. He testified that near­ surface soils in the Penobsquis area are typically fine-grained and frost susceptible.

71. Mr. Brian Roulston also testified on behalf of the Respondent. He stated he is a geologist employed by PCS. He has been involved with exploration and mining of the Penobsquis Potash Deposit since 1974 and is responsible for geological and mine engineering matters at the Penobsquis mine.

72. This witness testified he has been involved with the subsidence monitoring program at the Penobsquis mine since its inception in 1989. He approached doctor’s Adam and Alma Chrzanowski to perform subsidence measurements. He advocated for subsidence monitoring despite the absence of a regulatory requirement in New Brunswick in order to verify that there was regular, slow, steady subsidence occurring over the mine as would be reported over any potash or salt mine.

73. He stated into evidence that PCS relied on Doctor Adam Chrzanowski to direct them as to the quantity and location of subsidence moments required for the monitoring program and he never refused to install monuments that Dr. Chrzanowski recommended be installed.

74. Mr. Roulston testified that PCS did receive a request from Heather McCabe to come and visit her property. He stated that he went with Bob Owen in 2009 or 20i0 to visit the home of Heather and Myrtle McCabe. The skirting at the back of their mini-home was being forced up near the back door. The horizontal siding was bowed, which appeared to him to be caused by water coming off the roof. Due to a lack of guttering on the complete back of the roof, water was running off and forming ice on the ground. The ice had built up quite high and was pushing the plywood or chipboard skirting up under the siding. Heather McCabe seemed to think the bowed siding was related to subsidence. She also raised the issue of her bowed roofline stating she had been told that the blocking-up of her mini-home would last for 10 years and since 10 years had not expired since the mini-home had been blocked up she thought the explanation for the bowed rootline must be something other than the blocking.

75. Brian Roulston testified that on the issue of sink holes allegedly caused by subsidence, from a geological perspective, there is no relationship between the presence or absence of sinkholes and the mining carried on by Potash Corporation of Saskatchewan Inc. Mr. Roulston stated that in one CBC report regarding Beth Norrad’s property, she stood beside a depression on her property that was referred to as a sinkhole many feet deep. When the ic:e melted, the hole was in fact only an inch to an inch and a half deep. Mr. Roulston was familiar with the property, and stated that a previous owner had a circular flower bed five feet across at that location in which he grew annuals (red salvia). The next owner, Ms. Norrad, fenced the yard off and kept horses on the property. The likely explanation is that the horses beat the flower garden down, causing the slight depression. It was not a sinkhole. With respect to an alleged sinkhole in the back yard of the Beth Norrad property, Mr. Roulston, having been in the back yard on many occasions for barbecues when the previous owner lived there, suggests that the “sinkhole” may be a fire pit dug out by the original owner.

76. Michael Hogan, Mark Fracchia and Stewart Brown also testified on behalf of the Respondent but presented little evidence as to the issue of subsidence and its effect on the property owned by Heather and Myrtle McCabe and Beth Norrad.

DECISION:

77.The issue to be decided upon is has subsidence resulting from Potash Corporation of Saskatchewan Inc. mining activities in Penobsquis, New Brunswick caused actual damage to Complainant’s Heather and Myrtle McCabe and Beth Norrad’s lands and premises.

78. The jurisdiction of the Mining Commissioner to hear and determine this matter is set out in the Act as follows:

13(1) Subject to this Act and the regulations, it is the function of the Mining commissioner and the Mining commissioner has exclusive jurisdiction to hear and determine all questions, disagreements, matters or claims arising out of the application of this Act and the regulations including to hear and determine any question,disagreement, matter or claim.

(…)

(k) respecting damage to or interference with the use and enjoyment of property arising out of activity canied on under this Act and including the determination of compensation;

19. The Act further provides that the Commissioner may make an order for compensation where he has determined there has been actual damage to or inference with the use and enjoyment of property and has determined the compensation to be paid:

13(8) Where the Mining Commissioner has determined that there has been actual damage to or interference with the use and enjoyment of property and he has determined the compensation to be paid, he may order a prospector, a holder or a mineral daim or mining lease or an operator of a mine to pay the amount so determined to the person aggrieved.

80. The liability of the holder of a Mining Lease (Potash Corporation of Saskatchewan Inc.) is set out in the Mining Act at S. 75(2);

75(2). The holder of a Mining Lease is liable for actual damage to or interference with the use and enjoyment of property caused by him or anyone acting on his behalf in or on the Lease area.

Therefore, the Complainants Beth Norrad and Heather and Myrtle McCabe must prove that they have suffered actual damage to or interference with the use and enjoyment of property and that Potash Corporation of Saskatchewan Inc., or anyone acting on its behalf in or on the Lease area caused such actual damage to or interference with the use and enjoyment of property.

81. The burden of proof of damage and causation lies with the Complainants Beth Norrad and Heather and Myrtle McCabe. The standard of proof which the Complainants must discharge in order to succeed is proof on a balance of probabilities.

82. The issue of proof of causation must be addressed in regards to the Complainants claims. In the Tort Law Contract, these test for causation applied by the Court is whether, “but for” the negligence of the defendant, the plaintiff would not have suffered the injury as point out in Clements v. Clements, 2012, Sec 32, (2012), S.C.J. No. 32 (Ql) at par 8.

(8) The test for showing causation is the “but for” test. The Plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury- in other words that the injury would not have occurred without the Defendant’s negligence. This is a factual inquiry.

If the Plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the Defendant fails.

83. Beth Norrad, Heather McCabe and Myrtle McCabe must show on a balance of probabilities that “but for” the mining activity of Potash Corporation of Saskatchewan Inc. in or on the Lease area (Penobsquis) the Complainants would not have suffered actual damage to or interference with the use and enjoyment of their property.

84. Therefore, have the Complainants established any causal connection between subsidence resulting from PCS’s mining activity in Penobsquis and the damage they alleged their land and premises have suffered?

Beth Norrad and Heather and Myrtle McCabe testified into evidence that there were a nlllll.ber of problems with their properties ranging from cracked foundations and walls to depressions and holes on their properties. Heather McCabe complained of buckling walls, Unusable rooms, sagging roof and mould. Beth Norrad complained her home was shaking and moving. The question remains, is this testimony from the Complainants enough to prove a causal connection between subsidence resulting froru. PCS ‘s mining activity in Penobsquis and the damage the Complainants allege their lands and premises have suffered? This evidence only, as presented by the Complainants, does not show an inference of causation that can be drawn.

85. The Complainants also relied on Mr. Mark Connell and Mr. Lawrence Wuest to prove a causal connection between subsidence resulting from PCS’s mining activities in Penosquis and the alleged damages to their lands and premises. Neither witness had any expertise in the measurement of subsidence nor the assessment of its effects on surface infrastructure therefore both witnesses were not qualified to present expert opinion evidence in the causes or effects of subsidence and only Mr. Wuest offered any opinion on the surface effects of subsidence in Penobsquis. However, he did not present any conclusion on whether surface structures have in fact suffered damage due to subsidence. Mark Connell did not offer any opinion on the surface effects of subsidence in Penobsquis and only spoke in general terms about how subsidence occurs.

86. I now turn to the evidence presented to me at the Hearing by Doctor’s Adam and Anna Chrzanowski. The Complainants and their respective Committees as well as Counsel for the Respondent acknowledged and agreed that both Doctors were experts in subsidence and both qualified to give expert opinion evidence in the field of subsidence. Both Doctor’s specialize in monitoring subsidence and have been doing so over the Potash Corporation of Saskatchewan Inc. mine site in Penobsquis, New Brunswick for over 20 years. They have the expertise required to properly assess which set of criteria for predicting surface damage based on the values of subsidence parameters (tilt, strain, curvature) are most reliable and applicable on the surface effects of subsidence in Penobsquis.

87. The Doctor’s report entered into evidence concluded that the extent of measured subsidence in Penobsquis is such that all of the residential houses in the Penobsquis area are within the two lowest categories of surface effects (Category 0, Norrad property, and Category I, McCabe property on a scalethat runs as high as Category V), the majority being within the lowest category. Damage to small residential structures is not expected where values are below Category II. The Doctor’s expert report concludes that all alleged damage claimed by the Complainants Beth Norrad and Heather and Myrtle McCabe must have been produced by natural factors not related to subsidence. Therefore, the Doctor’s conclude that the observed subsidence which has occurred in Penobsquis is not associated with any damage to small residential wood-frame structures of the kind occupied by the Complainants Beth Norrad and Heather and Myrtle McCabe.

88. The expert report and testimony of Doctor’s Adam and Arula Chrzanowski concluded that subsidence of the degree experienced in Penohsquis would not cause the damages that the Complainants Beth Norrad and Heather and Myrtle McCabe alleged. But for the mining activity of the Respondent, the Complainants would still have experienced the damage to their property about which they have complained.

89. Therefore my conclusion is that the Complainants have failed to prove on the balance of probabilities any causal connection between the mining activities of Potash Corporation of Saskatchewan Inc. at Penobsquis and damages caused to their Lands and Premises as they alleged because of subsidence. My conclusion based on all of the evidence presented before me at the Hearing is that the Complainants Beth Norrad and Heather and Myrtle McCabe have failed to prove on the balance of probabilities that their lands and premises have been damaged by the effects of subsidence resulting from Potash Corporation of Saskatchewan Inc. mining activities in Penobsquis, New Brunswick.

The Complaint is dismissed without costs.

Dated at Dalhousie, New Brunswick, this 31st day of January, 2013.

RODERICK P. DUGUAY, ESQ.

Mining Commissioner for the Province of N.B.

 

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One thought on “Text of the Penobsquis report and comments

  1. Just a note that the water issues were resolved between the residents and the Mine.
    Although many withdrew their complaints about subsidence these issues were not resolved, and continuing action is planned on these issues and on air quality.
    Thanks for your interest.

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