Smaller Drinking Water Systems under the Safe Drinking Water Act
In the spring of 2005, a new drinking water regulation was proposed and quickly passed into law, simplifying rules and reducing requirements for 18,000 small and rural drinking water systems across Ontario. O.Reg. 252/05 (Non-Residential and Non-Municipal Seasonal Residential Systems That Do Not Serve Designated Facilities) under the Safe Drinking Water Act (SDWA) lowers the requirements for licensing and approvals, operator training, water treatment, water quality testing, and reporting. This decision creates a three-tiered system for protecting drinking water supplies. Most residential systems will continue to be regulated by the Ministry of the Environment under the SDWA and O.Reg. 170/03 (the Drinking Water Systems Regulation). Very small systems – private wells – remain outside the scope of the SDWA, governed by the limited requirements of the Wells Regulation (see Wells Regulation Update 2006). In between these two tiers are the systems governed by the new regulation.
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Looming deadline and an interim solution
Faced with a June 1, 2005, deadline under O.Reg. 170/03 for some small systems to begin expensive water testing, the Ministry of the Environment quickly passed O.Reg. 252/05, allowing only an abbreviated comment period on the proposal on the Environmental Registry. MOE presented the regulation as an interim arrangement while a new regulatory approach was under development. The proposed new approach, posted for consultation on the Registry in May 2005, would transfer agency responsibility for most non-residential or seasonal systems subject to O.Reg. 252/05 from MOE to the Ministry of Health and Long-Term Care under the Health Protection and Promotion Act (HPPA). Local public health inspectors would set individual treatment and testing requirements for these systems, based on risk assessments.
The government announced that consultations on this proposal would begin in fall 2005 and that the transfer to MOHLTC would occur as early as fall 2006. However, as of June 2006, a public consultation process had not occurred and no decision notice had been posted. O.Reg. 252/05 and its minimal standards may therefore be in effect for longer than was intended.
O.Reg. 252/05 was designed to accommodate concerns over the high cost of compliance with O.Reg. 170/03. O.Reg. 252/05 was intended to be in place until the new risk-based, system-specific approach under MOHLTC and public health units could be established. Under O.Reg. 252/05, many systems are not required to provide water quality testing or treatment (warning signs may be posted instead), certified operators, raw water quality monitoring, or annual reports to MOE. Bacterial testing will target fewer parameters, and sampling frequencies are reduced for distribution system bacteria and chlorine residual.
Implications of the decision
For tens of thousands of non-residential or seasonal drinking water systems – presumably where the public has less exposure to contaminants because of only occasional use – the new regulation lowers many requirements designed to ensure water safety. Both the current and the previous governments have repeatedly and publicly committed to implementing all of Justice O’Connor’s recommendations from the Walkerton Inquiry. MOE will continue to be the lead ministry for development of drinking water policy and standards even when the new approach to small drinking water systems is adopted under MOHLTC and public health units.
Public participation and the EBR process
Consultation on Ontario’s drinking water regulations has been extensive, including numerous Environmental Registry notices, consultations with affected groups, and broad public consultation through an Advisory Council on Drinking Water Quality and Testing Standards appointed by the Minister of the Environment.
The Council’s report on small drinking water systems called for public health inspectors to conduct risk assessments and inspections, but recommended that a new regulation for these systems remain under the SDWA and MOE authority. Instead, the government decided to pursue wholesale transfer of regulatory power to MOHLTC. The Council also recommended that existing testing requirements remain in place until a new approach is implemented. MOE instead chose to proceed with lowered testing requirements in O.Reg. 252/05, pending development of a new approach. As of June 2006, the province does not appear to have implemented many of the Council’s other recommendations on small systems, such as providing assistance to bring non-municipal year-round residential systems up to the performance level of municipal systems, providing alternative test methods for systems located far from water testing labs, pre-approving treatment equipment options, and regularly reporting on progress in implementing the recommendations.
Many commenters complained about the short posting period and the last-minute nature of changes to requirements. Commenters were also concerned that trailer parks and other small year-round systems continue to face treatment and testing costs of O Reg. 170/03. Laboratory costs led many to call for public MOHLTC labs to provide the testing. Other commenters said rules for water wells remain unclear, and that reduced requirements will increase the risks for the affected drinking water systems. MOE’s decision notice on the Registry did not accurately reflect the public’s concerns. It suggested that comments were either generally supportive of the proposal or were based on misunderstandings.
ECO Comment
In our 2003/2004 report, the ECO pointed out that the cost and complexity of requirements under O.Reg. 170/03 might create difficulties for the owners of smaller drinking water systems. (Please see New Drinking Water Regulation under the Safe Drinking Water Act, 2002 for more information.) Many of the owners of such drinking water systems were clearly in agreement and conveyed their views to the Ontario government in strong terms. O.Reg. 252/05 is a compromise response, intended to protect public health while recognizing the financial limitations faced by rural businesses, community centres, and other small water systems.
MOE made a sincere attempt to consult with drinking water system owners and to find creative solutions for Ontario’s highly diverse drinking water systems. The ministry is to be commended for its willingness to accept feedback and to revise the applicable laws, as it attempts to develop a drinking water protection framework of unprecedented sophistication.
However, MOE’s pattern of making last-minute changes to drinking water regulations and compliance deadlines also creates difficulties. It undermines MOE’s credibility and rewards those system owners who delay their compliance. MOE repeatedly put off making a decision on how to address the resistance from small-system owners to O.Reg. 170/03, then rushed to pass the amending regulation, O.Reg. 252/05, without respecting EBR requirements for a minimum 30-day Registry posting. The Registry posting appears to have been merely a token show of consultation and not a true opportunity for public input. MOE’s decision notice stated that it made no changes between proposing and finalizing the new regulation because most commenters were supportive of the regulation as proposed. In fact, the ECO’s review determined that commenters raised many concerns with the proposal.
The Health Protection and Promotion Act is currently not a prescribed Act under the EBR. Transferring much of MOE’s drinking water responsibility to the HPPA would therefore remove many of the public’s EBR rights. The ECO urges MOE to work with MOHLTC to prescribe appropriate portions of the HPPA under the EBR, including all regulations of environmental significance under the Act.
Drinking water systems under O.Reg. 252/05 are governed on an interim basis by only very cursory requirements for testing, treatment and reporting. From the risk-averse framework of mandatory protections under O.Reg. 170/03, the pendulum has swung in the opposite direction, to a cost-averse framework of minimal requirements. The ECO recognizes that these facilities are not primary drinking water sources for most users, so exposures are limited. However, these are drinking water systems that serve the public, and the ECO encourages MOE and MOHLTC to expeditiously develop a frame- work for a more balanced approach, one that takes into account both the costs of compliance and the risks and costs of tainted water.
The success of the proposed shift to site-specific risk assessments by public health inspectors will hinge on whether there is capacity enough to implement the program. The health units will need inspections staff, inspection protocols, training and technical expertise, and information management systems. Moreover, transferring responsibilities from MOE to public health inspectors will not automatically lead to safer drinking water: water quality is an expression of overall environmental quality, and drinking water problems are best addressed at the level of source protection, not only at the treatment system level.
The ECO notes with concern that by detaching the Ministry of the Environment from responsibility for smaller drinking water systems, this decision may isolate the ministry from valuable sources of information on the state of the environment.
| Recommendation 11:
The ECO recommends that MOH and MOE prescribe under the EBR portions of the Health Protection and Promotion Act pertaining to small drinking water systems, to ensure the appropriate level of transparency and public consultation. |
| This is an article from the 2005/06 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2006. "Smaller Drinking Water Systems: An Interim Solution." Neglecting our Obligations, ECO Annual Report, 2005-06. Toronto, ON : Environmental Commissioner of Ontario. 107-111.
