Intervenor: Vol. 25 no. 2 April - June 2000

The Case for a Safe Drinking Water Law

What caused the Walkerton tragedy? Could a similar disaster occur elsewhere? Is our drinking water safe?

These and other questions are being raised after seven people (perhaps more) died, and 1,000 people were sickened, from ingesting E. coli bacteria which contaminated Walkerton's drinking water supply. While the Walkerton inquests, investigations, and lawsuits may eventually provide some answers to these questions, one thing is clear right now -- Ontarians need safe drinking water legislation.

At the present time, there is no Ontario law specifically designed to safeguard the province's drinking water, particularly at the point of consumption. Instead, we have a complex and confusing mix of law and policy, such as:

  • water management laws dating back to the 1950s (Ontario Water Resources Act);
  • general anti-pollution laws dating back to the 1970s (Environmental Protection Act); and
  • unenforceable policies, guidelines, and objectives of varying vintage (Ontario Drinking Water Objectives).

Similarly, Ontario's Health Protection and Promotion Act confers only general powers and duties upon medical officers of health, and does not constitute comprehensive drinking water legislation. Clearly, Ontario's current regulatory framework is inadequate to protect the quality and quantity of the province's drinking water.

Recent government initiatives have only compounded these systemic problems. For example, the budget of the Ministry of the Environment (MOE) declined from $287 million in 1995 to $158 million this year, which represents a 44% reduction. Over the same timeframe, the number of MOE employees has decreased from 2,500 to 1,500. Many of these job losses occurred among MOE staff who had worked on drinking water, surface water, and groundwater issues.

In the context of these massive cutbacks, the Provincial Auditor and the former Environmental Commissioner of Ontario repeatedly raised concerns about inadequate protection of drinking water. Regrettably, it now appears that these critical, independent reports were simply shelved without implementation by the Ontario government.

Environment Minister Dan Newman recently proposed to pass regulations dealing with the accreditation of private laboratories which test drinking water, and clarifying when these laboratories must report test results to the MOE. Sadly, these measures fall far short of addressing the fundamental flaws in Ontario's drinking water "safety net".

If the Minister truly intends to safeguard drinking water, then he and his government must, among other things, commit to the immediate passage of safe drinking water legislation. At a minimum, this new law should contain the following elements:

  • entrench a clear public right to clean and safe drinking water;
  • impose a mandatory duty on the Minister to establish legally enforceable limits for drinking water contaminants which may adversely affect human health;
  • require drinking water suppliers to sample, monitor, and report upon the quality of drinking water;
  • ensure full public access to test results and reports required under the law;
  • ensure that water treatment and distribution systems are properly maintained, repaired or upgraded in order to meet drinking water standards;
  • impose a positive duty on drinking water suppliers (and/or their laboratories) to immediately notify consumers, MOE officials, and medical officers of health whenever there are operational problems, water testing delays or difficulties, or test results showing violations of drinking water standards;
  • establish stringent prohibitions and penalties, and permit citizen enforcement of the law to ensure compliance;
  • allow individuals to sue violators of the law or drinking water standards, or to sue the Minister for failing to perform his/her duties under the law; and
  • require drinking water suppliers to assess the vulnerability of drinking water sources to contamination.

The concept of safe drinking water legislation is not new. For example, the United States enacted safe drinking water legislation over 25 years ago. Administered by the Environmental Protection Agency, this law sets national standards to protect consumers from harmful contaminants in drinking water.

In Ontario, public interest groups have advocated safe drinking water legislation since the early 1980s. More recently, these groups pushed for legislative protection of drinking water when the province proposed Bill 107, the so-called Water and Sewage Services Improvement Act, 1997. However, the Ontario government inexplicably refused to entrench such protection within Bill 107 or any other statute.

The Walkerton tragedy reminds us of our continuing vulnerability to contaminated drinking water, and it underscores the need for safe drinking water legislation. While such a law is too late to prevent the Walkerton deaths, it will undoubtedly help to reduce the risk of similar disasters in the future.

Editor's Note: This article was published in a number of Ontario newspapers in June 2000.

Rick Lindgren is a lawyer at CELA