Engineers and Geoscientists BC issued a Notice of Inquiry on September 21, 2018 (amended Feb 26, 2020 and Jun 22, 2020) to Laura Fidel, P.Eng., alleging seven separate elements of unprofessional conduct and breaches of the Code of Ethics in relation to the engineering services Ms. Fidel provided at the Mount Polley Tailings Storage Facility (the “TSF”) prior to its breach on August 4, 2014. A public discipline hearing concerning Ms. Fidel proceeded in front of a panel of the Discipline Committee of Engineers and Geoscientists BC (the “Panel”) on July 6–17, 2020, by way of a virtual hearing due to the COVID-19 pandemic. The Panel was comprised of three senior professional engineers.
Ms. Fidel was employed as an engineer with a division of AMEC Americas Limited (“AMEC”). She acted as both the Engineer of Record (“EOR”) and Project Manager for the TSF starting in the Spring of 2013 until taking leave from her position in February 2014 (paras 2, 4).
The purpose of the Fidel discipline case was not to assess the cause of the breach of the TSF but to consider the allegations in the Notice of Inquiry issued to Ms. Fidel concerning her engineering services (paras 5, 23). The cause of the breach was separately addressed in reports of the Mount Polley Independent Expert Engineering Investigation and Review Panel and the Chief Inspector of Mines.
Prior to the hearing, the parties were able to concur on an Agreed Statement of Facts. The Panel made further findings of fact in relation to each of the issues in the Notice of Inquiry. At the outset, the Panel outlined the history of the TSF (paras 11–19, 24–75). The complexity of the dam increased with each incremental increase in the height of the embankments (para 12). By early 2013, three senior engineers who had played prominent roles with respect to the Mt. Polley TSF left AMEC and either retired or joined another engineering firm, BGC Engineering Ltd. (“BGC”) (para 16). By April 2013, Ms. Fidel was appointed as the EOR by AMEC (paras 17, 47).
Unprofessional Conduct by Ms. Fidel in Accepting the Role of EOR & Taking Responsibility for the Stage 9 2013 Construction Monitoring Manual – Not Proven
The allegation at paragraph 1 of the Notice of Inquiry was that Ms. Fidel demonstrated unprofessional conduct when she undertook and accepted responsibility for the role of EOR for the TSF in circumstances where she was not qualified by training or experience. This charge was not proven (para 247).
In considering the allegation that Ms. Fidel was not qualified to act as the EOR (paras 149–248) the Panel noted that in 2013 there was no comprehensive written definition within industry that outlined the role and responsibilities of an EOR (paras 160, 246). The Panel noted that following the Mt. Polley TSF breach, a significant effort was made within industry and the profession to clarify and commit to writing the definition and duties of the EOR (paras 168–172).
The Panel noted the absence of any detailed references to the EOR position or what was contemplated for the EOR in the AMEC or the Mount Polley Mining Corporation (“MPMC”) documents related to the TSF (paras 194–201, 221). With respect to Ms. Fidel’s experience and training prior to becoming the EOR, the Panel wrote:
The Panel intends no disrespect to Ms. Fidel in noting that she was still a relatively junior engineer in 2013 when she became the EOR for the TSF (para 210) …and had never been the engineer with overall responsibility for the design of a tailings dam (para 211).
Notably, the Panel found that, “Ms. Fidel was thrust into the EOR role in early 2013 by AMEC management, specifically Mr. Rice (para 219)”. The Panel wrote:
There were no documents prepared by AMEC or MPMC that outlined for Ms. Fidel exactly what was expected of her in the EOR role [and] …there was very minimal guidance for Ms. Fidel in terms of what was expected of her as the new project EOR (para 221).
Further, the Panel noted that AMEC and MPMC, a sophisticated client (para 222), appeared to accept that Ms. Fidel was qualified to the extent necessary to serve as the EOR for the TSF at Mt. Polley “as that position had been structured between AMEC and MPMC (para 224).”
Despite finding that allegation #1 was not proven against Ms. Fidel, the Panel noted the context in which Ms. Fidel was appointed as EOR by AMEC (paras 178–193, 218–219) on the departure of the three senior geotechnical engineers from AMEC. The Panel raised concerns about the actions of AMEC, which was not a party to the discipline hearing, in appointing Ms. Fidel as EOR (paras 17, 234–236).
The Panel observed, “There is also no question that Ms. Fidel would not have been qualified at that point in time to undertake the EOR role as it is now broadly defined (para 246).”
Panel member Dr. Yaworsky, Ph.D., P.Eng., wrote a dissenting opinion stating that in accepting the role of EOR, Ms. Fidel was in breach of Principle 2 of the [former] Code of Ethics which required Ms. Fidel to undertake and accept responsibility for assignments only when qualified by training or experience (paras 440–483). Dr. Yaworsky’s position was not accepted by the other two members of the Panel.
The allegation in paragraph 2 of the Notice of Inquiry alleges that Ms. Fidel demonstrated unprofessional conduct as she accepted professional responsibility for the Stage 9 2013 Construction Monitoring Manual in circumstances where she was not qualified by training or experience to accept that responsibility. This element was not proven. The panel noted the conflicting expert reports, the lack of particularization with potential issues with the actual engineering work performed, the review of the Construction Monitoring Manual by Mr. Rice at AMEC and that much of the content had been used over multiple AMEC dam raise campaigns (paras 249–266).
Unprofessional Conduct in Ms. Fidel’s Role as the EOR - Proven
With respect to Ms. Fidel’s activities while acting as the EOR, the Panel found that Ms. Fidel engaged in unprofessional conduct with respect to five of the allegations as set out at paragraphs 3, 4(a), 4(b), 4(g) and 6 of the Notice of Inquiry.
With respect to paragraph 3 of the Notice of Inquiry, the Panel found Ms. Fidel engaged in unprofessional conduct as she affixed her seal to the Stage 9 2013 Construction Monitoring Manual and Design Drawings, which were not prepared by her or under her direct supervision (paras 267–286). Although Ms. Fidel was involved in the design process as she assisted with the stability analysis and did some work relating to the design, the Panel found that mere involvement in a project is not sufficient for an engineer to seal design documents unless that engineer is also in a position to take responsibility for all aspects of the design and the design concept (paras 274–275).
Paragraph 4 of the Notice of Inquiry relates to allegations that Ms. Fidel failed to ensure that, as EOR and Project Manager, there was sufficient observation and monitoring of the TSF embankments while she was the EOR, in particular as the TSF embankments had been built to a slope of 1.3:1, which by all accounts was unusually steep for a rockfill tailings embankment constructed on a soil foundation (para 288). Unprofessional conduct was established against Ms. Fidel as she failed:
- (a) to visit the site and observe the embankments more than once in a thirteen-month period from January 2013 to February 2014 (paras 297–308);
The Panel noted, “…in light of the complexity of the dam at Mt. Polley and its ever-narrowing approach to its ultimate height …Ms. Fidel did not meet the standard expected (para 305–306).”
- (b) to ensure that a geotechnical engineer with appropriate experience and knowledge of the design of the embankments visited the site to observe the TSF embankments for potential indicators of safety or stability issues (paras 309–316);
The Panel wrote, “During her time as the EOR and Project Manager on the Mt. Polley project, the evidence revealed that Ms. Fidel did not take appropriate steps to ensure that the expected standards of observation were taking place with respect to the TSF (para 316).”
- (g) to request and review reports of seepage monitoring which may have provided evidence of a potential unsafe condition with the embankments such as piping (paras 358–366).
Ms. Fidel agreed that it was an important aspect of her role to regularly monitor seepage flows and acknowledged that changes in seepage flows could indicate internal erosion of the embankments or piping (para 359). The experts for both Engineers and Geoscientists BC and Ms. Fidel shared the opinion that seepage flow rates were required to be measured and reviewed by an EOR or Project Manager at least monthly (paras 360–361). The Panel found that only a singular seepage rate measurement was taken during a 9–10 month period (para 362). As such, the Panel wrote:
…Ms. Fidel did not meet the standards expected of a competent professional in terms of requesting this important seepage data. It was necessary for Ms. Fidel, in her role as either Project Manager or EOR, to assess changes in the drain flow as they were occurring. The data were needed in real time in order to ensure that any issues that arose could be addressed and corrected (para 363).
With respect to paragraph 6 of the Notice of Inquiry (paras 400–419), the Panel found that Ms. Fidel engaged in unprofessional conduct as she became aware of an unfilled excavation at the toe of the perimeter embankment of the TSF but did not take steps at any time prior to commencing a leave from work in February 2014 to:
- have an appropriately qualified geotechnical engineer assess the excavation to determine what impact it would have on the stability of the embankment;
- determine the extent and purpose of the excavation and who authorized it; and
- notify MPMC that the excavation was not in conformity with the Stage 9 Design.
The Panel noted that Ms. Fidel did not know the purpose of the excavation work (para 405). The Panel found, “Ms. Fidel’s inaction in taking steps investigate the toe excavation fell below the standard of professional conduct required in the circumstances. …it was incumbent on Ms. Fidel to take steps to investigate what was happening with the excavation and make some determination as to whether or not the excavation impacted the design (para 412).”
Unprofessional Conduct in Ms. Fidel’s Role as the EOR – Not Proven
The allegations against Ms. Fidel set out in 4(c) and 4(d) of the Notice of Inquiry relate to allegations that Ms. Fidel failed to receive regular updates on the volume and elevation of water in the TSF impoundment (paras 317–338) and to ensure that the implications of any changes to the water balance were assessed both in terms of stability and consequences if failure occurred (paras 339–344). The allegations were not proven.
The panel accepted that knowledge of the elevation and volume of water in the TSF was critical information (para 319). As between AMEC and MPMC, MPMC was responsible for measuring and producing the elevation and volume of water in the TSF calculations (paras 321–322). Ms. Fidel requested updates on the pond elevations on four instances in 2013 (paras 323, 335).
The panel noted that, “…more could most certainly have been done by Ms. Fidel to obtain and review such data. The Panel does not view Ms. Fidel’s apparent lack of professional curiosity about these matters without criticism. Ms. Fidel should have been more proactive on these matters” (para 336). However, the Panel found that Ms. Fidel’s actions did not rise to the level of negligence or unprofessional conduct (para 337).
The allegation at paragraph 4(f) was that Ms. Fidel failed to advise and warn MPMC that students should not be used as field inspectors (paras 345–357). The Panel accepted the basic premise put forward by Engineers and Geoscientists BC that the practice used to monitor the TSF was unsatisfactory. The Panel noted that, “Undergraduate engineering students, who knew very little about the intricacies of geotechnical engineering, tailings ponds or construction monitoring, were responsible on the ground to undertake regular monitoring of a large, complex engineered structure (para 347).” The Panel found that with the benefit of hindsight it may have been a prudent course for a new EOR to have independently re-assessed the monitoring and inspection arrangements that had been in place for a number of years (paras 355 and 356). Nevertheless, the Panel found that on becoming the EOR, Ms. Fidel inherited a system of monitoring that had been established long before she became EOR or Project Manager (para 357) and coupled with the absence of any prior resulting harm the allegation did not rise to negligence or unprofessional conduct (para 356).
Paragraph 5 of the Notice of Inquiry related to an allegation that Ms. Fidel signed and sealed the 2012 Stage 8/8A As-Built Report and made the statement that the embankment was “judged to have been carried out in conformity with design intent” when in fact the Stage 8/8A raise was constructed at a steeper slope and with a wider crest than was designed (paras 370–399). The allegation was not proven. The Panel noted the historic divergence between construction and design with respect to the TSF, the involvement of the former engineers at AMEC in reviewing the as-builts after they had left AMEC, the 2012 report from BGC that provided a similar view, the apparent review of the as-built report by Mr. Rice and the general manner in which the design intent was referred to in the 2012 As-Builts (para 399).
In conclusion, the allegations set out at paragraphs #3, 4(a), 4(b), 4(g) and 6 of the Notice of Inquiry were proven. The allegations set out at paragraphs 1, 2, 4(c), 4(d), 4(f) and 5 were dismissed (para 22).
A hearing on penalty and costs will take place either by written submissions or by video conference, on a date and time to be arranged (para 485).
The full text of the Decision can be found in the Disciplinary Notices section of our website, at egbc.ca/Discipline-Notices.
Engineers and Geoscientists BC’s website contains information on the complaint, investigation, and discipline processes. You can contact us at 604.558.6647 or toll-free at 1.888.430.8035 ext. 6647, or by email at [email protected].