Since 2002, the Ontario Safe Drinking Water Act, 20021 ("SDWA") has imposed responsibility for the quality of drinking water on owners and operators of drinking water systems in Ontario. The Ministry of the Environment ("MOE") continues to aggressively prosecute municipalities, non-municipal corporations and individuals responsible for drinking water systems for breaches of the SDWA.
Escalating Penalty Regime on Subsequent Convictions
Penalties for non-compliance with the SDWA are onerous. Corporations facing charges under the SDWA that have a history of previous convictions potentially face penalties of up to $200,000 per day. For individuals, fines for subsequent offences can be up to $50,000 per day, imprisonment of up to one year or both a fine and imprisonment. For serious offences, such as those that could have resulted in a drinking-water health hazard, the maximum penalty for corporations for subsequent offences can be up to $10,000,000 per day. For individuals, maximum penalties for these serious offences can be up to $7,000,000 per day, imprisonment of up to five years less a day or both a fine and imprisonment.
In practice, fines to date have been significantly lower. For municipalities, since 2005, fines for first convictions have ranged from $1,500 to $13,000 per charge. Since 2006, fines against municipalities for subsequent convictions have ranged from $3,500 to $15,000 per charge. For non-municipal corporations, fines for first convictions have ranged from $1,500 to $70,000.2
For individuals, fines for first convictions have ranged from $1,500 to $5,000. For the subsequent conviction of one individual charged under the SDWA, the individual was ordered by the court to surrender his operator's licence and was prohibited from applying for a licence under the SDWA.
However, the cumulative fine amounts can still add up, since the MOE generally brings a number of charges concurrently. In addition, on conviction, there is a mandatory 25% victim surcharge added to the cumulative penalty amount. In some cases this has resulted in escalation of the total fine amount to close to $100,000.
A Selection of Recent Charges under the SDWA
In our experience most SDWA charges brought against owners and/or operators of drinking water systems result from routine MOE compliance inspections of water treatment facilities and distribution systems. Typically, the MOE Provincial Officer inspects logbooks, records and other files maintained by the owner and/or operator. The inspection leads to the discovery of one or more contraventions of the SDWA, certificate of approval for the plant or Provincial Officer Order. After the inspection, the Provincial Officer then refers his or her findings to MOE's Investigation and Enforcement Branch for investigation. Information gathered during an investigation may result in charges.
Municipal Owners and/or Operators
Since 2002, municipalities were charged under the SDWA for:
- failing to take samples from all wells in a drinking water system (fine of $15,000)
- failing to complete work necessary to meet the requirements of the Procedure for Disinfection of Drinking Water in Ontario (fine of $12,000) and failing to ensure that water treatment equipment is capable of achieving primary disinfection (fine of $9,000)
- failing to test daily free chlorine residual concentrations in water distribution systems (fines up to $10,000 per charge)
- failing to maintain free chlorine residual concentrations in water distribution systems specified in certificates of approval (fine of $10,000 per charge)
- failing to operate drinking water equipment in a treatment plant when water is obtained or supplied (fine of $10,000 per charge)
- failing to notify the MOE and the local medical officer of health that improperly disinfected water may have been sent to a distribution system (fine of $5,000 per charge).
Non- municipal Operators
Since 2002, non-municipal operators were charged under the SDWA for:
- failing to report turbidity exceedances (fine of $5,000 per charge)
- failing to report adverse drinking water tests to the MOE and local medical officers of health (fine of $5,000 per charge)
- submitting false information to the MOE, failing to ensure that primary disinfection was achieved, failing to record low chlorine levels in logbooks and failure to record a non-functioning chlorine pump. The individual charged had a previous conviction. On conviction for these charges, the individual was ordered to surrender his operator licence and prohibited from applying for a licence under the SDWA.
Individuals and Corporations
Property managers, apartment building owners, landlords, school boards, summer camps, ski resorts, trailer parks and other owners and/or operators of drinking water systems have been targets for MOE inspections and charges under the SDWA.
A property management business was the owner and operator of a rural drinking water system that had been abandoned and left in a state of disrepair. An MOE inspection of the well, pump house and interviews with the users of the system found several health-related concerns with the drinking water system. The MOE Provincial Officer issued an order against the owner of the system requiring the owner to submit an action plan to the MOE describing the measures the owner planned to take to bring the drinking water system into compliance with the SDWA. After failing to provide the action plan to the MOE by the deadline provided, the owner was charged under the SDWA with failing to comply with the Provincial Officer Order and fined $20,000.
A laboratory accredited and licensed under the SDWA was charged under the SDWA with:
- failing to report adverse nitrate results to the MOE, the local medical officer of health and the water distribution system's operating authority (fine of $14,000 per charge)
- failing to report an adverse water quality result for lead to the MOE and the local medical officer of health (fine of $14,000 per charge) and to the water distribution system's operating authority (fine of $12,000 per charge).
The owner of a health care facility was responsible for the operation and maintenance of the drinking water system for the facility. At the time of the offence the owner was required to sample and analyse the drinking water on a weekly basis and record the results in a log book. When the MOE inspected the drinking water system, the MOE Provincial Officer found that the owner had not collected or analysed samples for 31 weeks. The health care facility owner was charged under the SDWA with failing to ensure that at least one distribution sample was taken every week and fined $2,000.
The owner of a youth camp was responsible for the operation of the drinking water system at the camp. A MOE inspection of the drinking water system found that the owner of the camp had failed to carry out the required sampling and to install the required primary and secondary treatment equipment. The camp owner failed to maintain the well casing to prevent contamination of the well and allowed untrained individuals to operate the system. The camp's owner was charged under the SDWA for the improper operation of a drinking water system and fined $36,000 for six charges.
A ski resort was charged under the SDWA with failing to report adverse test results of drinking water samples to the MOE and failing to identify the laboratory that conducted its water testing and fined $7,000.
Expanded responsibility for municipal drinking water systems under the SDWA
Once in force, Section 19 of the SDWA will expand the list of persons who may be charged in connection with municipal drinking water systems. Section 19 will also establish the standard of care required by owners, operators and persons who oversee operators or have decision-making authority over the system. Municipal mayors and councillors who do not exercise an adequate level of care or oversight may find themselves the target of MOE investigations and fines.
Juli Abouchar is a partner of Willms & Shier Environmental Lawyers LLP, and an Environmental Law Specialist, Certified by the Law Society of Upper Canada. Vivienne Ball is a senior associate with Willms & Shier Environmental Lawyers LLP. Juli was Assistant Commission Counsel to the Walkerton Inquiry, and has successfully defended municipal owners of drinking water systems against Ontario Water Resource Act and Ontario Safe Drinking Water Act, 2002 prosecutions.
Footnotes
1. S.O. 2002, c. 32.
2. Fines against corporations for subsequent convictions, if any, were not available at time of writing.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.