The Ministry Engineer’s responsibility to disclose safety risks to the public

Summary
One of our concerns for the proposed hydro-electric generating station at the Bala falls is the risk to public safety.

We understand that the proponent does not yet have, and has not even applied for, the approval from the MNR required to build the proposed project. The approval required is for “Phase 2: Permanent Works, Plans and Specifications, under the Lakes and Rivers Improvement Act”. This approval must be provided by an MNR “Ministry Engineer”, who must be a Professional Engineer and licenced to practice in the province of Ontario, as “The designing, evaluating, or supervising of works to dams fall under the practice of professional engineering”. Professional Engineers have an obligation to the public, including:

• To: “take all reasonable steps to protect the interests of parties that might be affected … before an incident occurs.”
• That it is expected they will have: “identified all actual or potential hazards to the interests of the client, employer or public associated with the work” and “communicated the risks to all affected parties.”

Rather than accepting this responsibility, the MNR is attempting to claim only the proponent would have responsibility for the safe operation of the proposed project, which is unacceptable as:

• It appears the proponent has no engineers on staff to accept and fulfill this responsibility. So the Ministry Engineer would not know if the approved design would actually harmful the public.
• Due to design features of the proposed project, it may not be possible to operate the proposed project safely, so public safety concerns do need to be considered by the MNR. A design must be considered in the context in which it would be operated. For example, it would be unethical to approve the design of a car if the brakes don’t work in some expected weather conditions.
• There has been no information provided to the public concerning the risks, or the proposed mitigation of these.
• This approval follows the MNR’s Location Approval, previously granted under the Lakes and Rivers Improvement Act. If it is only now learned that the design submitted for Plans and Specifications approval cannot be operated safely for the location approved, then it would be the MNR’s responsibility to not issue the Plans and Specifications approval.
   

Detail
As shown below, we have written several detailed letters to the Ministry of Natural Resources and Forestry (MNR), noting their responsibility for public safety:

1. On September 24, 2015 we sent an e-mail with several attachments to the MNR (which provided the detail in our articles here and here), and was comprised of the following:

   • Our September 24, 2015 letter (here), which detailed unaddressed public safety issues. For example that the proponent has not specified how the public would be warned before the proposed generating station would begin operation. Also, it would be unprecedented to locate a hydro-electric generating station in the middle of a popular in-water recreational area.
   • The above letter also noted that using Transport Canada’s and the MNR’s own calculation, but properly and very conservatively done, the upstream safety boom would need to be relocated farther upstream and this would prevent boats from being rented in the area. And in fact if the calculation fully considers the dangers, the upstream safety boom would also prevent Diver’s Point and the Town Docks on Bala Bay from being used.
   • The result is that the upstream safety boom would need to be relocated at least as shown here.
   • In addition to the above attachments, we also provided the Lifesaving Society’s Aquatic Safety Audit report and our cover letter for it.
      
2. On October 20, 2015 the MNRF replied to the above (here), stating:
   1. It would be the responsibility of the proponent to figure out how to operate their proposed generating station safely.
      • What if this is not possible, or the methods required are unacceptable to the public (such as sounding a siren every day).
         
   2. The MNR will consider public safety measures as part of the Plans and Specifications approval.
      • Now is the time for public safety measures to be considered.
         
   3. The MoE already considered public safety impacts on boating and the public docks.
      • The MoE received no information on boating safety in the Moon River, and received no information on swimming, wading, or Scuba diving.
         

   The letter makes a bizarre observation that the area immediately below the Bala north dam is at a higher elevation than the Moon River, apparently indicating this would therefore not be made dangerous by the proposed generating station. This is as absurd as telling a child they can play at the edge of a cliff or on the shoulder of highway because it is safe there. (In another absurd statement, in this letter the MNR reminds us that we can just call 911 “for emergency response personnel to attend the site in a timely way” – does the MNR not realize we have a volunteer fire department in Bala, and what would they do when they arrive, help recover the dead bodies held under water at the station’s intake, or not be able to borrow a boat from Purk’s Place because there would no longer be boat rentals there because the upstream safety boom would need to be relocated to prevent this.)
    
   The letter also notes that Bracebridge Generation would be the operator of the proposed Bala station, apparently to provide comfort that they have the required experience for this situation. This is no comfort, as we note that all three of Bracebridge Generation’s generating stations at and upstream of Bracebridge have barbed-wire fencing, and in 2008 the middle station caused the drowning of a 16 year-old-boy and there is still no downstream safety boom there to indicate where the deadly water is.

   Empty assurances are useless. Before any further approvals are provided, the public must be shown an acceptable plan of how this proposed generating station would be safely operated.
    
   So in summary, the MNR’s reply did not respond to the upstream safety boom concern, the public warning concern, or anything else in our letter. 

3. On October 26, 2015 we sent another letter (here) to the same person at the MNR, who happens to be a Professional Engineer. Our letter:

   • Detailed the significant new information which has resulted in the MoE’s public consultation and public safety assessments no longer being valid.
   • Notes that the MNR’s suggestion that people could still use the area immediately below the Bala north dam because its elevation is above that of the Moon River is completely irresponsible.
   • Shows that the next approval from the MNR must be made by a Professional Engineer, and that Professional Engineers have an obligation to protect the public and to communicate all potential hazards to the public. The MNR therefore has an obligation to communicate with the public.
   • Requested a meeting.
      

4. On November 12, 2015 the MNR replied (here). Ignoring our detailed letter, the MNR only stated that their publication Public Safety Around Dams provides best management practices to guide dam owners and “that future correspondence in relation to operational details be directed to Swift River Energy Limited.”

   The MNR is attempting to avoid any responsibility for the impossible situation they have created by not requiring the proponent to honour the commitments made as part of being selected to pursue this opportunity.

The problem is the MNR does have responsibility for the Lakes and Rivers Improvement Act and the Ministry Engineer does have a responsibility to inform the public of the risks that would be created. The MNR has a public safety responsibility and are attempting to pass all responsibility to the proponent.

It may not be possible to safely operate the proposed station, as currently designed, in the proposed location. The Ministry’s Professional Engineer cannot simply assume some future layman will figure it out.