Tuesday, May 12, 2015

Colliery Dams Appeal/Stay Could Save Millions

Is Council Going To Waste Millions of Tax Dollars?

The following basis to apply for a Stay of the DSS order has been laid out by two very knowledgeable members of our community. I have forwarded a copy to all members of our City Council and would hope they will take the appropriate action, as millions and millions of tax dollars are about to be spent on the results of arguably a very flawed process.

• Council should take the following steps:
1. Instruct staff to file an appeal/stay based on the following reasons:
a. That the Comptroller of Water Rights has neglected to acknowledge and consider important new developments and information including the fact that the previous Inundation Study which was the context and primary reason why the Dams were classified as an extreme safety hazard has since been contradicted by the new Golder analyses and reports.
b. That the dams have since been reclassified as Very High (Lower Dam) and High (Middle Dam) however this classification also will be reviewed by an independent process to confirm whether this classification is in fact overly conservative.
c. That if the spillways are indeed deficient, this condition would have existed since the dams were built over 100 years ago and there is no record of the dams ever overtopping. The City believes therefore that the urgency and schedule for completing the further diligence should be relaxed to reflect these facts.
d. That the remediation options that the Comptroller now is limiting the City to by this order may not be the best options since there is further due diligence that the City believes and intends to carry out before making a choice of remediation.
e. That the latest classification of the Lower Dam was deemed to be Very High however the City wants to carry out further study and analysis to confirm this conclusion since , amongst other things which particulars will be provided during the appeal process, it appears that the environmental consequences of any dam failure have not been assessed on an incremental basis.
f. That the City has been very responsible and diligent in its handling of this matter as evidenced by expenditures of some $2.5 million dollars on this matter to date, and thus far established previous DSS conclusions and suggested extreme solutions such as removal of the dams would have been unnecessary and resulted in a significant loss of a heritage structure in a much used Nanaimo park.
g. That the DSS personnel have acted in an unprofessional manner and may have failed to apply the required and expected degree of diligence in reviewing previous reports and as a result issued several letters to the City and even to a local newspaper claiming that up to 150 fatalities could result from the failure of the dams in an earthquake mode of failure and now have a conflict of interest in the outcome of this matter
2. Instruct staff to engage legal counsel to provide advice and to give an opinion on the feasibility of the City having grounds for a legal objection to the action taken by the Province such as an injunction or other action. In particular the City should instruct legal counsel to investigate the history of this issue to determine if possibly the Comptroller has acted in bad faith in its conduct and issuing of this order. If in the opinion of counsel the Comptroller has acted in bad faith that the City starts an action seeking damages for such bad faith conduct by the Province, the DSS, the Comptroller and other DSS personnel as per Section 90 of the Water Act.
3. Instruct staff to draft a letter to the Province for the Mayor’s signature which letter will notify the Province that the City is complying with the order however it is doing so under protest and under duress and will continue to carry out further due diligence regarding the need to construct the remediation options dictated by the province and according to the schedule ordered by the province or at all. Should such further review, study and analyses determine that such action was unnecessarily ordered, that the City will be seeking compensation for any and all expenses and costs incurred by the City due to the Order being overly harsh, or unreasonable. This letter to be copied to the Minister, the Premier, etc etc.
4. Appoint a select committee to inquire into the entire Colliery Dams matter including a detailed review of all engineering reports and expenses incurred. This committee should include Jim Kipp on behalf of Council, a retired judge or QC lawyer, appropriate members of the public and a qualified, (with more than 10 years practical experience in performing Dam Safety Reviews, designs, and remediation work) Engineer/Project Leader. Further terms of reference will be developed by the committee for approval of this council.


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