Engineering Philosophy 101 . . . regulation beyond the individual

In Canada, professions are regulated under provincial/territorial law. In turn, provincial/territorial responsibility is accomplished by enacting laws that create profession specific Associations that are assigned the right/responsibility of self regulation. In the case of engineering, individual provincial/territorial Acts vary in detail, but the rationale behind their existence and their fundamental principles are reasonably consistent across jurisdictions. There is enough consistency that Engineers Canada and their constituent associations have been able to develop a mobility agreement that facilitates membership transfer between provincial associations.

This national/provincial/territorial approach to regulation is rationalized on the basis of the assumption that those who practice a specific profession are best qualified to understand, and therefore to regulate, that profession. Typically, Acts relating to professions contain a definition of the scope of practice for which each association is responsible and with which members must comply. Membership in each association is restricted to those who are deemed, by that profession, to be “qualified” to practice that profession.

Clearly, the intention of this approach to self regulation is to assure the public that those who claim to be qualified are, in fact, qualified. If you look at the definition of the practice of professional engineering contained in the definitions section of the Engineering and Geoscientific Professions Act here in Manitoba, that intention becomes very clear. The Act states that the “”practice of professional engineering” means any act of planning, designing, composing, measuring, evaluating, inspecting, advising, reporting, directing or supervising, or managing any of the foregoing, that requires the application of engineering principles and that concerns the safeguarding of life, health, property, economic interests, the public interest or the environment;”

So, individually, and collectively, we professional engineers are charged with the responsibility of protecting the public when it comes to “. . . the application of engineering principles . . .”.

But wait a minute, what constitutes “. . . the application of engineering principles . . .” and what control do engineers have? For example, would it be reasonable to assume that the design and/or selection of rail cars used to transport crude oil is, or should be, “. . . the application of engineering principles . . .”?

There have been a number of explosions associated with rail transportation of crude oil in Canada recently. With each new incident, almost everyone in authority, public and private, has expressed their concern for public safety. We are told that the technical “culprit” is the DOT-111 tanker car. We are told that this particular piece of “hardware” has long been known to be subject to explosion if/when it is loaded with a flammable liquid and involved in a derailment.

Further, we are told that this particular piece of “hardware” still makes up the majority of the oil transportation fleet. We are assured that new, more rigorous regulations governing rail transportation of dangerous substances are being, and/or have been, introduced on both sides of the 49th parallel. But . . .

There is no question that rail transportation of crude oil is a critical component of the energy sector of the Canadian and American economies. There is no question that the cost of replacing/modifying all DOT-111 rail cars is significant. There is no question that it will take time to replace/modify all DOT-111 rail cars in the system. But . . .

Would it be fair to suggest that the rail lines are knowingly putting the public at risk based on the fact that they continue to employ equipment that they know to be unsafe? Would it be fair to suggest that government regulators have either been unable or unwilling to intervene on behalf of the public? Would it be reasonable to look at the Manitoba definition of the “practice of professional engineering,” and conclude that these corporations/organizations might be practising engineering?

Within our profession, an individual’s responsibility is clear. In our association the charge associated with a member’s discipline hearing usually includes the statement that Engineer X “. . . knew or ought to have known . . .”. Can you imagine the outcome if Engineer X was faced with a charge that read . . . knew, or ought to have known, when he/she authorized their use, that DOT-111 rail cars loaded with crude oil have a high probability of exploding when involved in a derailment?

If one steps back from the incident specific claims and counter claims that the media have reported following each accident, there is a deeper question relating to public safety.

Engineering legislation/regulation places responsibility on individual engineers, or engineering groups practising under a “certificate of authorization.” Apparently, however, corporate entities that create and operate systems that place the public at risk are not held to this same level of responsibility. One can argue that the Railway Safety Act speaks to responsibility for the safe operation of rail transportation systems, but there seem to be gaps in either enforcement or application.

Given that corporations are, in the eyes of the law, “pseudo persons”, does it not make sense to require that they, or the persons within their structure, be held accountable for consequences arising from “. . . the application of engineering principles . . .”?.

The above article appeared in the Keystone Professional, Winter 2014 edition, published by the Association of Professional Engineers and Geoscientists of Manitoba (APEGM). It is reproduced with permission.

Ron Britton, Ph.D., P.Eng., is Professor Emeritus, Past NSERC Chair in Design Engineering at the University of Manitoba.