Ontario and U.S. Safe Drinking Water Acts in Comparison and Contrast: How Ontario Should Regulate for Public Confidence

Tania L.M. Monteiro

Tania Monteiro obtained her LL.B. from Queen's Law School in Kingston, Ontario, and was called to the Ontario Bar in 2002. She completed her articles at Gowling, Lafleur Henderson in Toronto where the focus of the practice was corporate and commercial litigation. Following this year of work. Ms. Monteiro attended Pace University School of Law where she completed an LL.M. with a specialization in environmental law, graduating cum laude. Ms. Monteiro also has worked for several other Toronto law firms in the areas of union-side labor and human rights law. She has done volunteer work for various social justice groups in and around Toronto including the Sierra Legal Defence Fund.

[33 ELR 10865]

In May 2000, in a town of 4,800 people in southern Ontario, 7 people died and more than 2,300 became seriously ill from drinking tap water contaminated with Escherichia coli (e-coli). The loss of life and the staggering degree of illness devastated the small town community. Even today many Walkerton residents continue to suffer adverse health effects while feelings of frustration and insecurity persist. The Walkerton tragedy ultimately unfolded a national debate in Canada on drinking water safety and hastened the Ontario provincial government to establish a public inquiry to investigate the issues.

Appointed as commissioner to the inquiry, Justice Dennis R. O'Connor of the Ontario Court of Appeals was charged with the twin mandates of investigating the causes that led up to the tragic events in Walkerton and of making recommendations to ensure the future safety of drinking water in Ontario. Part One of the inquiry was held in Walkerton to make findings of fact about the specific physical and systemic causes of the tragedy. Over a nine-month period, the commission heard evidence from many witnesses including residents of Walkerton, various special interest groups that were given standing for ongoing participation and, quite dramatically, even from the Premier of Ontario. Justice O'Connor's findings of fact and his 28 recommendations were released on January 18, 2002, in Part One Report of the Walkerton Inquiry, The Events of May 2000 and Related Issues.¹ Sadly, provincial government budget reductions and discontinuation of laboratory testing services were held largely to blame for the severity of the Walkerton tragedy.

Part Two of the inquiry engaged a broader examination of the legal and policy questions surrounding drinking water [33 ELR 10866] delivery systems and drinking water safety in Ontario. On May 23, 2002, Justice O'Connor released Part Two Report of the Walkerton Inquiry, A Strategy for Safe Drinking Water² in which he made 93 recommendations for legislative and policy reform,³ including recommendations that Ontario develop a comprehensive, source-to-tap governmentwide drinking water policy and enact a "safe drinking water act."⁴ Making specific recommendations about the fundamental contents of a "safe drinking water act," Justice O'Connor called for: recognition that the public is entitled to expect that the drinking water coming out of their tap is safe; the establishment of a licencing regime for owners of drinking water systems; the creation a statutory standard of care for persons who exercise municipal oversight functions; the requirement for certificates of approval for drinking water systems; the requirement for use of accredited operating agencies; the requirement for the training and certification of operators of municipal drinking water systems; the establishment of regulatory standards for drinking water quality; the creation of an advisory committee on drinking water standards; the establishment of regulatory standards for treatment, distribution, and monitoring; the obligation of government oversight of water testing laboratories; and the enhancement of provincial powers for inspections, abatement action, investigation, and enforcement.⁵

On the basis of Justice O'Connor's recommendations, the Ontario government swiftly enacted the Safe Drinking Water Act ((ON)SDWA)⁶ in 2002. The new (ON)SDWA represents a major legislative and regulatory overhaul in Ontario, consolidating various scattered legislative bits of drinking water protection into a single Act and mandating new (and hopefully improved) standards, more rigorous permitting regimes, and increased public and government scrutiny over drinking water delivery. Still in its early stages, the ultimate efficacy of the Act is yet to be realized.

In contrast to the relative youth of the (ON)SDWA, the U.S. Congress enacted its Safe Drinking Water Act ((US)SDWA)⁷ in 1974. This 30-year vintage allows for the use of the (US)SDWA as a template against which to measure the potential strengths of the (ON)SDWA and by which to identify its gaps, omissions, and deficiencies. Interwoven throughout this analysis is a look at the success of the (ON)SDWA as an implementation of the O'Connor recommendations in light of the Walkerton tragedy. For the most part, this comparative examination will focus on the more pressing practical issues, highlighting the areas of greatest weakness in the (ON)SDWA: water quality standards; community right-to-know; and enforcement.⁸

An Overview of the (ON)SDWA and the (US)SDWA

Their Histories and Contents

Upon release of Part Two of the Walkerton report in May 2002, the Ontario government quickly signaled its intention to act upon Justice O'Connor's recommendations. By October 29, 2002, Bill 195 was introduced for First Reading by Environment Minister Chris Stockwell, who pronounced that "the Safe Drinking Water Act is an environmental milestone for this province. By passing it the members of this House will make Ontario a world leader in drinking water protection and preservation."⁹ Upon the Second Reading, on October 31, 2002, Minister Stockwell again proclaimed the proposed Act to be "the toughest legislation in the world for safe drinking water—not Canada and not North America; it's the toughest legislation in the world."¹⁰ The (ON)SDWA underwent its Third Reading on December 10, 2002, and received Royal Assent on December 13, 2002.¹¹ The (ON)SDWA was proclaimed into force on June 1, 2003, when the necessary implementing regulation was finalized by the Ministry of the Environment (MOE). From January 14, 2003, to March 15, 2003, the MOE solicited public comment on a draft version of the present regulations. This draft regulation has become law as two separate regulations: Regulation 170/03, Drinking Water Systems, houses, inter alia, the public notification and disclosure obligations that took effect on June 1, 2003, and brought the Act into force; Regulation 169/03, Water Quality Standards, is expected to take effect in October 2003.¹²

The (ON)SDWA is divided into 12 parts,¹³ only a few of [33 ELR 10867] which will be reviewed in this Article. By way of a quick summary, Part I, Interpretation, commences with the legislative purpose that, quite noticeably, does not create any substantive right to safe drinking water¹⁴:

1. To recognize that the people of Ontario are entitled to expect their drinking water to be safe.

2. To provide for the protection of human health and the prevention of drinking-water health hazards through the control and regulation of drinking-water systems and drinking-water testing.¹⁵

Part II¹⁶ deals largely with administrative matters and charges the MOE with the responsibility of overseeing the administration of the Act.¹⁷ Some of the discretionary powers given to the Minister under this part are: to recommend standards for various drinking water matters¹⁸; to conduct drinking water research¹⁹; to ensure training courses for operators²⁰; and to make grants and loans relating to drinking water matters.²¹

Part III of the Act sets out the basic obligations for owners and operators of drinking water systems.²² Very significantly, it also imposes a standard of care on owners and overseers of municipally owned systems and on the directors and officers of any corporation that may own a water system²³ to "exercise the level of care, diligence and skill that a reasonably prudent person would be expected to exercise in a similar situation" and to "act honestly, competently and with integrity, with a view to ensuring the protection and safety of the users of the drinking water system."²⁴ The operational requirements of Part III are premised on the establishment by the MOE of the Quality Management Standards²⁵ as required by Part IV.²⁶ The Act does not specify the use of any particular technology²⁷ (as would typically be the case in American environmental statutes/regulation); it requires only that the MOE designate²⁸ an accreditation body to regulate and audit operators²⁹ under the yet-to-be Quality Management Standards regulations.

Parts V³⁰ and VI³¹ are complete codes for the issuance of licenses for the operation of municipal and nonmunicipal drinking water systems, respectively. In the case of municipal drinking water systems, this section prescribes the contents and procedures for licence applications³² and imposes enumerated conditions on every permit.³³ Part VII³⁴ addresses laboratory requirements and mandates that all persons performing drinking water testing services be accredited and licenced under the Act.³⁵

Part VIII, Inspections, gives provincial officers broad entry and inspection powers,³⁶ including the power to enter any natural environment³⁷ or any drinking water system place³⁸ and to take samples,³⁹ examine and copy documents,⁴⁰ and to make searches and seizures without warrants.⁴¹ Compliance and Enforcement is addressed under Part IX,⁴² and will be discussed more thoroughly in this Article. Parts X to XII⁴³ deal with various administrative issues including appeals and the prescribed offenses.

Of a much longer lineage, the original 1974 (US)SDWA required the U.S. Environmental Protection Agency (EPA) to regulate drinking water in two steps. First, EPA was required to establish national primary drinking water regulations, including the establishment of maximum contaminant levels (MCLs), along with requirements for monitoring, reporting, recordkeeping, and public notification in case of failure to meet levels. The second step required EPA to revise these standards following a review of them by the National Academy of Sciences.⁴⁴ Interim levels were set for 6 synthetic organic chemicals, 10 inorganic chemicals, turbidity, and total coliform.⁴⁵ Interim standards for radionuclides followed in 1976 and total trihalomethanes in 1979.⁴⁶ In 1979, EPA set national secondary drinking water regulations as nonenforceable guidelines regulating aesthetic problems in drinking water.⁴⁷

The Act was reauthorized in 1986 with significant amendments aimed at forcing EPA to regulate more contaminants and at establishing source protection mechanisms, [33 ELR 10868] specifically the Wellhead Protection program and the Sole Source Aquifer program (discussed below). EPA was required to set MCLs and maximum contaminant level goals (MCLGs) for an additional 83 contaminants that were finding their way into groundwater sources from industrial and agricultural origins and from contaminated municipal waste sites.⁴⁸ It was also required to regulate on the disinfection of public water supplies, specify filtration systems, establish monitoring requirements for unregulated contaminants, and specify the "best available technology" for the treatment of each contaminant for which an MCL was set.⁴⁹

In 1996, the (US)SDWA again underwent significant amendments. Here, the focus was a redesigned standard setting process on the basis of a cost-benefit analysis, (discussed below), the creation of prevention programs, and the institutionalization of increased public accountability (also reviewed below).⁵⁰

Again by way of quick synopsis, part A⁵¹ of the (US)SDWA contains the basic definitions and most notably the definitions for the two types of drinking water standards. Primary drinking water regulations specify for each contaminant either an MCL that is economically and technologically feasible or, if not feasible, a treatment technique that is sufficient to satisfy health-based requirements.⁵² Secondary drinking water regulations protect public welfare in general and regulate contaminants that adversely affect the odor or appearance of drinking water.⁵³

Part B of the Act contains the substantive and procedural requirements for EPA to follow in the setting of national primary drinking water regulations including the notorious cost-benefit analysis.⁵⁴ This part is also home to EPA enforcement powers⁵⁵ and the public notification and accountability obligations,⁵⁶ both of which will be reviewed below. The portions of part B that will not be reviewed include: the provisions for variances⁵⁷; exemptions⁵⁸; the prohibition on the use of lead pipes⁵⁹; and operational certifications.⁶⁰ Part C of the Act contains the various source protection programs.⁶¹ Part D is the source of EPA's emergency powers,⁶² and part E contains some general individual operator requirements along with provisions for research and grants for state programs.⁶³ Finally, part E also contains the citizen suit provision,⁶⁴ which will also be considered below.

Water Quality Standards

Setting Procedures and Substantive Contents

Two aspects of the water quality standard-setting process will be reviewed in this section: the degree of public participation and the analytical framework employed. The (US)SDWA affords a great deal more opportunity for public input into the determination of contaminant levels than does the Canadian standard-setting process or than the provincial MOE has thus far permitted in the ongoing regulatory implementation of the (ON)SDWA. On the other hand, the (US)SDWA has built its standard-setting process on a hotly considered cost-benefit analysis, a framework that has not found uptake in the (ON)SDWA. While many of Canada's and Ontario's drinking water standards levels remain less strict than EPA's, there also remains the possibility that a new framework, built on Justice O'Connor's recommendation that standard setting be premised on the precautionary principle, will move toward increased stringency in standards.

Drinking water regulation in Canada falls to the jurisdiction of the provinces. The federal government, however, through the Department of Health, has written a set of nonbinding guidelines.⁶⁵ The guidelines are set by a discrete committee of officials from the federal, provincial, and territorial governments with very little public input, consultation, or political oversight.⁶⁶ Provinces and territories then determine which standards from the federal guidelines to adopt in their respective jurisdictions.

Prior to Walkerton, Ontario had simply carried over the federal guidelines as nonenforceable provincial guidelines, called the Ontario Drinking Water Objectives. In 2000, after Walkerton but prior to the enactment of the (ON)SDWA, these objectives were incorporated into law by Regulation 459/00 under the Ontario Water Resources Act.⁶⁷ Now, under the (ON)SDWA the MOE has a duty to create an Advisory Council on Drinking Water Quality and Testing Standards,⁶⁸ the purpose of which will be to "consider issues relating to standards for drinking water quality and testing and to make recommendations to the Minister."⁶⁹ The Minister will be required to consider these nonbinding recommendations when establishing or revising drinking water quality or testing standards.⁷⁰ To date, no such advisory council has yet been established. Meanwhile, the new draft regulation has directly adopted old Regulation 459/00,⁷¹ and will soon become law under the (ON)SDWA. The old drinking water [33 ELR 10869] standards will therefore have been entrenched into new law without any recent or additional political discussion, public participation, or regulatory scrutiny and without the consideration of the statutorily mandated (though yet-to-be created) advisory council. All of this cannot be reconciled with Justice O'Connor's Recommendation 21 "that the federal-provincial process for proposing drinking water quality guidelines be refined to provide for greater transparency and public participation."⁷² Noting that the standards are merely regulatory and not yet in force, the MOE still has the opportunity and, quite arguably, the obligation to provide for public and regulatory reconsideration of the old standards before they become new law.

By contrast, the (US)SDWA's statutorily mandated notice-and-comment procedures for all national primary drinking water regulations and subsequent revisions allow for a degree of public participation unmatched in either Canada or Ontario. The (US)SDWA requires EPA to regulate contaminants that may have an adverse effect on the health of persons, for which it is known that there is a substantial likelihood that the contaminant will occur in public water systems, and for which the regulation of such contaminant presents a meaningful opportunity for health risk reduction.⁷³ For each contaminant requiring federal regulation, EPA must promulgate a nonenforceable MCLG that is a level below which there is no known or anticipated adverse effects on health and that allows an adequate margin of safety.⁷⁴ Simultaneously with the MCLG, EPA must establish an enforceable MCL that is as close to the MCLG as is feasible,⁷⁵ taking economic costs and technology into consideration.⁷⁶ Throughout the whole process, EPA is required to ensure that information on the public health effects is "made available to the public" and is "comprehensive, informative and understandable."⁷⁷

Every five years, EPA must, after consultation with the scientific community and public notice-and-comment procedures, publish a list of contaminants that are not already subject to regulation, that are known or anticipated to occur in public water systems, and that may require regulation.⁷⁸ EPA must then determine, again after public notice-and-comment procedures, whether or not to regulate at least five contaminants from this list.⁷⁹ EPA's statutory duty to (at least) consider the regulation of additional contaminants coupled with its obligation to put all steps of its decision out for notice-and-comment procedures affords the degree of transparency and accountability that Justice O'Connor had called for in the federal-provincial standard-setting procedures,⁸⁰ but which are markedly absent from both the (ON)SDWA itself and in the process by which the old Regulation 459/00 is now being merely rolled over, without any public, political, or regulatory reconsideration, into new law.

While public participation may be lacking in the (ON)SDWA, there remains the possibility that the analytic framework by which standards are set will be revised to move further away from one based on costs and more toward one based on precaution. Currently, the federal guidelines are set by a process in which the committee identifies and then evaluates drinking water contaminants on an assessment of their potential health risk.⁸¹ Drinking water quality standards are expressed as maximum acceptable concentration limits (MACs) for microbe and chemical/physical properties.⁸² Where data are insufficient but a hazard is suspected, an interim MAC may be specified.⁸³ A MAC is determined on a risk-assessment approach that is premised on a desired zero-level goal (particularly for pathogens and chemical carcinogens) coupled with a consideration of technological and economic feasibility that yields an "acceptable" level.⁸⁴

On a slightly but not sharply different assessment framework, EPA sets U.S. drinking water quality standards on a cost-benefit analysis.⁸⁵ At its core, the cost-benefit analysis is a three-step process that requires a high degree of public scrutiny and a much particularized analysis of the individual quantifiable and nonquantifiable costs and benefits of various aspects of the regulation. When proposing a regulation, EPA must seek public comment on seven cost and benefit aspects: (1) the quantifiable and nonquantifiable health risk reduction benefits that are likely to occur as a result of treatment and compliance; (2) the quantifiable and nonquantifiable health risk reduction benefits that are likely to occur from reductions in co-occurring contaminants that result from compliance with the MCL; (3) the quantifiable and nonquantifiable costs that will result from compliance with the MCL, including monitoring and treatment; (4) the incremental costs and benefits associated with each alternative MCL considered; (5) the effects of the contaminant on the general population and on certain identifiable subgroups, such as infants, children, pregnant women, the elderly, and the ill; (6) any increased health risk that may occur as a result of compliance; and (7) any other relevant factor, including the quality and extent of the information and the uncertainties and factors with respect to the degree and nature of the risk.⁸⁶ Following this step, when EPA proposes a regulation it must also publish "a determination as to whether the benefits of the MCL justify or do not justify the costs based on the [the analysis above]."⁸⁷ Lastly, EPA may issue a final rule with an MCL for a contaminant "that maximizes [33 ELR 10870] health risk reduction benefits at a cost that is justified by the benefits."⁸⁸

It goes without question that this cost-benefit analysis is a bone of contention. While it might appear callous to trade off dollars for human life, EPA maintains that "public health protection remains the primary basis"⁸⁹ for determining drinking water standards. Still others in the academic community take a more pragmatic approach noting that "valuation problems are unavoidable and are clearly implied by most of the important decisions the government makes."⁹⁰

Back in Canada, while there has been no change to the analytical framework for the standard-setting process described above, Justice O'Connor's recommendation that standards ought to be set on the basis of the precautionary principle resonates loudly and raises the possibility of change:

Recommendation 19: Standards setting should be based on a precautionary approach, particularly with respect to contaminants whose effects on human health are unknown.⁹¹

In setting up systems that affect human health, decision-makers usually err on the side of safety, regardless of the costs. A refinement to this approach is the precautionary principle, a guide to environmental action that has been recognized in international law and cited approvingly by the Supreme Court of Canada.⁹² Precautionary measures include setting standards to account for uncertainties, investments in risk mitigation or alternative technologies, and investments in research. This prudent approach must still consider costs, but as prevention usually costs much less than remediation, the precautionary principle has a role to play in risk management and should be an integral part of decisions affecting the safety of drinking water.⁹³

While Justice O'Connor noted that the events at Walkerton were not the result of inadequate water quality standards,⁹⁴ there is nevertheless a need to ensure that human health and water quality are assuredly protected. There are many contaminants for which Ontario has equal⁹⁵ or more stringent⁹⁶ levels to those of the United States.⁹⁷ But there are many more for which U.S. limits are more strict.⁹⁸ On the foundational basis of the precautionary principle, Ontario and Canada ought to move toward more stringent standards for the regulated contaminants and also to strike initial standards for the many unregulated contaminants.⁹⁹ Of particular note are arsenic and asbestos. On January 22, 2001, EPA promulgated a new rule lowering the MCL for arsenic from 0.5 (milligrams per liter (mg/l) to 0.010mg/l,¹⁰⁰ far below the Ontario and Canadian MACs of 0.25mg/l.¹⁰¹ With respect to asbestos, it remains an unregulated contaminant in Ontario and Canada but is subject to an MCL of seven million fibers/liter in the United States. Ontario and Canada should follow suit, at a minimum, in these specific cases and on the basis of the precautionary principle generally, and should adopt standards at least as stringent as those in the United States, if not more so.

Community Right-to-Know: The Sin of Omission

Justice O'Connor concluded that necessary elements of any safe drinking water regulation are transparency and public accountability, and he structured his recommendations with the intention that these public rights be built into the legislative reformation:

My recommendations are intended to improve both transparency and accountability in the water supply system. Public confidence will be fostered by ensuring that members of the public have access to current information about the different components of the system, about the quality of the water, and about decisions that affect water safety. Public confidence will also be raised by ensuring that those who make decisions about drinking water safety are accountable for the consequences of those decisions.¹⁰²

Unfortunately, the (ON)SDWA did not live up to this recommendation. While there are several provisions scattered throughout the (ON)SDWA aimed at providing public access to drinking water documents and related matters, there is no similar and strong entrenchment of the community right-to-know principal that exists in the (US)SDWA. The following section of this Article compares the MOE and EPA/state obligations to produce annual, publicly accessible [33 ELR 10871] reports. Contrasted here are the drinking water system's and owner's obligations to provide public notification in situations of standards exceedances and to provide information about drinking water to the users of its system.

The (ON)SDWA requires that the MOE annually prepare and table before the Ontario Legislature a report that includes¹⁰³: the status of the development and establishment of drinking water quality standards and the quality of drinking water in Ontario; new information on pathogens, chemicals, and other potential causes of drinking water health hazards; a summary of the results of inspections and accreditation audits for drinking water systems and drinking water testing services; a summary of enforcement activities; and a review of the quality of raw water supplies and source protection initiatives across the province.¹⁰⁴ The Chief Inspector must also file annual reports to the MOE regarding "the overall performance of drinking water systems in Ontario and the inspection program for drinking water systems,"¹⁰⁵ which is to be made public after receipt by the Minister.¹⁰⁶ Finally, the contents of the operational contract¹⁰⁷ and the operational plan¹⁰⁸ between the owner of a drinking water system and the operator of the system must also be made public.¹⁰⁹

The (US)SDWA imposes very similar accountability obligations on the states. Each state with primary enforcement authority must publish and deliver to EPA an annual compliance report that includes that year's violations of MCLs, treatment requirements, and variances and exemptions, and for which it must indicate where the full report is accessible for public review.¹¹⁰

While the disclosure obligations for the MOE/Chief Inspector are roughly similar to those for EPA/states, the statutory and regulatory differences surface upon review of the notification and disclosure duties required by the owners of the public drinking water systems. While both statutes impose public notification duties in situations of standards violations as well as annual reporting duties, the differences lie in the degree to which the delivery, form, and content of these obligations are prescribed.

The (ON)SDWA requires that an owner or operating authority immediately report adverse test results to the MOE and medical health officer.¹¹¹ Public notification requirements for owners are triggered when the prescribed corrective action requires the use of an alternate source of drinking water or when users are required to boil water or when testing is not properly being carried out.¹¹² Owners are required to "post" a warning notice "in a prominent location" where they are "likely to come to the attention of the users.¹¹³ The concern is obvious: that without better prescribed details on the timing, form, content, and media delivery device that absolutely guarantee public knowledge of adverse water quality, those most likely to be affected (the elderly, the sick) are less likely to become aware.

By contrast, public notification requirements under both the (US)SDWA and its regulations are markedly more stringent and much more heavily prescribed. The Act generally mandates notice requirements for violations of MCLs, treatment techniques, and testing requirements,¹¹⁴ and imposes additional requirements when the violation has the potential to have serious adverse effects on human health including that the notification: be delivered within 24 hours; be readily understandable; and contain an explanation of the nature of the violation, the potential adverse effects on human health, the corrective steps that the public water system is taking, and the necessity of seeking alternative water supplies.¹¹⁵

In turn, EPA has created three tiers of notification procedures depending on the severity of the effects of the violation on human health. Tier 1 violations are those with "significant potential to have serious adverse effects on human health as a result of short-term exposure"¹¹⁶ and require the public water system to "provide the notice within 24 hours in a form and manner reasonably calculated to reach all persons served,"¹¹⁷ including by broadcast media, posting in a conspicuous location, or by hand delivery.¹¹⁸ Tier 2 notifications arise for all violations that do not seriously threaten human health. Notification must be provided in a "form and manner reasonably calculated to reach the persons served"¹¹⁹ and "as soon as practicable, but not later than 30 days" after knowledge of the violation.¹²⁰ Finally, tier 3 notifications are applicable for monitoring and testing violations (not MCL exceedances) for which tier 1 requirements do not apply¹²¹ and must be delivered within one year or otherwise included in the owner's annual report.¹²²

The second disclosure obligation imposed on owners of drinking water systems in Ontario is the annual report.¹²³ Regulation 170/03 requires that an owner submit to the Ministry a report that: contains a brief description of the drinking water system; summarizes the operational test results; summarizes water quality test results; and describes any corrective actions.¹²⁴ As far as public disclosure goes, the owner need only "ensure that a copy of an annual report is given, without charge, to every person who requests a copy."¹²⁵ Upon preparation of the annual report, the owner [33 ELR 10872] of the system is required to take "effective steps" to advise users that free copies of the report are available and of how a copy may be obtained.¹²⁶ Only for systems that serve over 10,000 people is the owner required to put the annual report on the Internet.¹²⁷ The result of these rather diminutive requirements is that drinking water users must necessarily ferret out basic information about their drinking water quality and their suppliers' compliance with prescribed requirements. The regulation thus places the onus on the water user to go searching for information about her/his water supply rather than on the water supplier to directly deliver information to users. All of this fails terribly at implementing a general community right-to-know principle and also at implementing Justice O'Connor's call for transparency and accountability so as to ensure public confidence in water supply systems.

By sharp contrast is the rigorous entrenchment of the community right-to-know principle in the (US)SDWA and in its regulations with the mandatory duty on water suppliers to deliver directly to customers a consumer confidence report (CCR).¹²⁸ EPA rules mandate numerous and very specified substantive and procedural details in respect of the issuance of CCRs, which must be mailed directly to billed customers annually.¹²⁹ For customers not directly billed, i.e., employees in public buildings, EPA requires that public water systems make "good-faith efforts" to disseminate the CCR and suggests various methods by which to do so: the Internet; local newspapers; delivery to community centers; and postings in cafeterias and lunch rooms.¹³⁰ The CCR must contain: information about the source of the drinking water; whether it is ground or surface; its common name; and how to access a source water assessment.¹³¹ In addition, systems are encouraged (but not mandated) to highlight any significant sources of contamination in the source water area,¹³² allowing for the possibility of public identification of industrial polluters.

The CCR must also contain plainly worded definitions of the terms "maximum contaminant level goal" and "maximum contaminant level,"¹³³ which are prescribed in the regulation.¹³⁴ When either regulated or unregulated but monitored contaminants are detected, the CCR must contain a statement setting forth the MCLG and the MCL for that contaminant along with the level of that contaminant detected.¹³⁵ For any regulated contaminant for which there was a violation, the CCR must contain a statement regarding the health concerns that resulted in the regulation of that contaminant by EPA.¹³⁶ The CCR must also include information on compliance with national primary drinking water regulations,¹³⁷ information on the levels of unregulated contaminants for which monitoring is required,¹³⁸ and a statement about contaminants likely to be found in drinking water regardless of any detection.¹³⁹

Ironically, Justice O'Connor did, at length, consider and acknowledge the importance and efficacy of CCRs and specifically recommended that Ontario adopt a system similar to the (US)SDWA's:

[CCRs] are an excellent means of disseminating relevant information to the public. They should be prepared by the system owner and operator and should set out basic information about the system and provide an annual update on its operation. A [CCR] would include information about any deviation from the required standards, the reason for such deviation, and the action taken to correct the problem. The reports could be included once a year with the local water bill.¹⁴⁰

Noting that the owners' requirement to merely "ensure that a copy of an annual report is given, without charge, to every person who requests a copy"¹⁴¹ is still just a prescription by regulation, there remains the opportunity, and arguably, the obligation for the MOE to correct this remiss.

Compliance and Enforcement: A Citizen's Right

For the most part both statutes make provision for the issuance of administrative compliance orders, administrative penalties, special emergency powers, and injunctive relief. Where the statutes differ most markedly is with the absence of a citizen suit provision. There is no likelihood whatsoever that Ontario will amend the (ON)SDWA to create a substantive right for citizen enforcement. Nevertheless, a brief review of the efficacy of this right in the United States sheds some light on the importance of amending the existing regulatory framework so as to subject the (ON)SDWA to the other statutory avenues for citizen environmental enforcement in Ontario.

Compliance and enforcement take place primarily through administrative avenues under the (ON)SDWA, as is the case under most other environmental statutes in Ontario.¹⁴² A provincial officer who reasonably believes that a person is contravening or has contravened any provision in the Act, any regulation, or any condition or term of a permit [33 ELR 10873] may issue a compliance order.¹⁴³ The administrative order to remedy noncompliance may include prevention of the continuation of the noncompliance, repair to the system, treatment, testing, sampling, reporting, providing an alternative supply of water, preparing plans, and/or posting notice of the order.¹⁴⁴ The Director¹⁴⁵ may also issue administrative penalties for violations of the Act, its regulations, or any term or condition of a permit¹⁴⁶ that are not to exceed $ 10,000 per day.¹⁴⁷ However, only the MOE is entitled to pursue injunctive relief for violations of the Act, the regulations, or the terms of a permit.¹⁴⁸

Under the (US)SDWA, water systems must collect samples at designated intervals and locations and must test those samples in approved laboratories.¹⁴⁹ Monitoring requirements exist for both regulated and unregulated contaminants.¹⁵⁰ All test results are reported to the state, which makes a determination of whether the water system is in compliance with the regulations.¹⁵¹ Where there is an adverse test result, a report must be made to the state within 48 hours.¹⁵² Civil enforcement for drinking water standards, treatments, and monitoring violations is available to EPA,¹⁵³ and the court may fashion such judgment as the "protection of public health may require" along with imposing a civil penalty of up to $ 25,000 per day.¹⁵⁴ Administrative compliance orders are also available to EPA along with civil penalties for noncompliance with a previously issued administrative order.¹⁵⁵

Where the MOE or the Director is of the opinion that there is an "imminent drinking water health hazard,"¹⁵⁶ she or he is empowered to: issue a cease and desist order for the operation of the system; order notification to the users of the system; order the owner to operate, maintain, or repair the system with such equipment as may be specified; and order sampling, testing, and monitoring of any waters.¹⁵⁷ The MOE may also issue a license suspension.¹⁵⁸

EPA's emergency powers are triggered where there is an "imminent and substantial endangerment to the health of persons" and where the state with primary enforcement authority has failed to take necessary actions.¹⁵⁹ EPA becomes empowered to issue orders to protect health including orders requiring the provision of alternative water supplies by the persons who caused or contributed to the endangerment and to commence a civil action for appropriate relief, including an injunction.¹⁶⁰

As mentioned above, only the MOE is authorized to seek injunctive relief against noncompliance and there is no citizen suit provision in the (ON)SDWA. This is not surprising, however, as there is no citizen suit provision in any regulatory or remedial environmental statute in Ontario. Instead, in 1993, Ontario created an omnibus citizen suit right for environmental enforcement to which almost all environmental statutes are subject. The Environmental Bill of Rights (EBR) provides:

Where a person has contravened or will imminently contravene an Act [or] regulation … and the actual or imminent contravention has caused or will imminently cause significant harm to a public resource of Ontario, any person resident in Ontario may bring an action against the person in the court in respect of the harm and is entitled to judgment if successful.¹⁶¹ EBR regulation 73/94 then prescribes the various environmental statutes for which this right to sue is available.¹⁶²

The (ON)SDWA does not include a provision making it subject to the EBR and neither does its draft regulation. Worse still is the fact that the (ON)SDWA has not been added to EBR Regulation 73/94. The unlikelihood that these omissions may be corrected is premised on Justice O'Connor's recommendation that safe drinking water legislation does not need to create new substantive legal rights:

I am satisfied that the existing causes of action, such as negligence, nuisance, and breach of statutory duty, provide sufficient access to the courts to compensate those who suffer damages from consuming unsafe drinking water. In my view, the primary tools for ensuring the safety of drinking water lie in protecting water sources, managing water systems competently, and regulating those systems effectively. I do not think that creating new routes of access to the courts is the most effective way to advance these goals. Indeed, I would be concerned that a significant increase in legal actions would divert money and time away from those activities that are better able to address the safety of drinking water.¹⁶³

Notwithstanding the dismal chance that either the (ON)SDWA or the EBR regulation will be amended, a quick review of the importance and efficacy of citizen enforcement in the United States is instructive and can form the first building block of an argument that the (ON)SDWA ought to [33 ELR 10874] be made subject to EBR citizen suit provision by addition of the (ON)SDWA to the EBR regulation.

As with almost every environmental statute in the United States, the (US)SDWA contains a citizen suit provision.¹⁶⁴ Frequently seen as partners to government in enforcement and with acknowledgment of the limitations of traditional common-law causes of action and relief for environmental protection, U.S. citizens have used their statutory rights as cornerstone environmental enforcement mechanisms ever since Congress first included the right in the 1970 Clean Air Act.¹⁶⁵ These provisions generally permit "any person" to bring a civil action against "any person" alleged to be in violation of the applicable Act.¹⁶⁶ This normally also includes the right to bring an action against federal officials who have failed to perform a mandatory regulatory duty,¹⁶⁷ thus ensuring that regulations are duly written and implemented. By way of relief, most statutes authorize the courts to order a person in violation to come into compliance with the applicable standard, rule, or requirement, to order performance of the duty by EPA, and/or to award civil penalties.¹⁶⁸ Additionally, most statutes also provide that the citizen suit provisions shall not be construed to restrict any right that any person may have under common law to seek any other relief,¹⁶⁹ thereby opening the jurisdictional door for injunctions.

Unfortunately, there is not the same successful stream of citizen suit enforcement jurisprudence under the (US)SDWA that there has been under other environmental statutes.¹⁷⁰ This is largely a result of the statutory language that requires a plaintiff to show that a person "is alleged to be in violation"¹⁷¹ of the Act or regulation, which consequently bars wholly past violations.¹⁷² For example, in Mattoon v. City of Pittsfield,¹⁷³ town residents who contracted giardiasis from drinking water contamination lost on the town's motion for summary judgment because they failed to show an "ongoing" violation of the Act, a jurisdictional prerequisite to the maintenance of a citizen's claim. In Jones v. Dow Chemical Co.,¹⁷⁴ users of the city water supply sought damages against a chemical company for its accidental spill and contamination of water supply with perchloroethylene. As in Mattoo, the citizens lost, in part, for a failure to show an "ongoing violation."

Regardless of the limited usefulness of the (US)SDWA's citizen suit provision, the power that other environmental citizen suit provisions have wielded has proven to be absolutely crucial at forcing compliance and increasing public participation in environmental regulation.¹⁷⁵ This stands out as a model for Ontario to consider and operates as both an impetus and a solid argument for the addition of the (ON)SDWA to the EBR regulation, notwithstanding Justice O'Connor's conclusions on the matter.

Conclusion

It remains to be seen whether Minister Stockwell's introductory remarks at First and Second Readings—that Ontario will be a "world leader" in drinking water safety and that the (ON)SDWA will be the "toughest legislation in the world"—in fact plays out as true.¹⁷⁶ Unfortunately for Ontario, the Act and its regulations' noted omissions may likely cause it to fall far short of the Minister's claim.

On the other hand, most all the gaps discussed in this Article can be quickly and easily corrected by the MOE through regulatory revision and without the need for statutory amendments. In particular, Regulation 169/03, Water Quality Standards, which appears likely to roll over the old water quality standards from Regulation 459/00 into the (ON)SDWA without regulatory or public review, should be made available for reconsideration, and the MOE should [33 ELR 10875] immediately strike the statutorily mandated advisory council to review those standards on the basis of the precautionary principle. The MOE should also amend Regulation 170/03's annual reports provisions to require more specificity in the form and content of the reports, that they be informative and understandable for the general population, and that they be mailed directly to water users' doors. Lastly, the EBR regulation, which subjects a list of statutes to citizen civil enforcement, should be amended to include the (ON)SDWA.

All of these regulatory revisions would have the general effect of enhancing government accountability, transparency, compliance, and public participation in drinking water regulation and would thus give concrete meaning to Justice O'Connor's most fundamental recommendation: that a "safe drinking water act" should foster public confidence in the drinking water system¹⁷⁷ and that the tragedy of Walkerton should never recur.

1. HON. DENNIS R. O'CONNOR, PART ONE REPORT OF THE WALKERTON INQUIRY, THE EVENTS OF MAY 2000 AND RELATED ISSUES (2002), available at http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/walkerton/part1 (last visited June 9, 2003) [hereinafter PART ONE REPORT]. The Part One Report's findings of fact are:

. Seven people died, and more than 2,300 became ill. Some people, particularly children, may endure lasting effects.

. The contaminants, largely E. coli O157:H7 and Campylobacter jejuni, entered the Walkerton system through Well 5 on or shortly after May 12, 2000.

. The primary, if not the only, source of the contamination was manure that had been spread on a farm near Well 5. The owner of this farm followed proper practices and should not be faulted.

. The outbreak would have been prevented by the use of continuous chlorine residual and turbidity monitors at Well 5.

. The failure to use continuous monitors at Well 5 resulted from shortcomings in the approvals and inspections programs of the Ministry of the Environment (MOE). The Walkerton Public Utilities Commission (PUC) operators lacked the training and expertise necessary either to identify the vulnerability of Well 5 to surface contamination or to understand the resulting need for continuous chlorine residual and turbidity monitors.

. The scope of the outbreak would very likely have been substantially reduced if the Walkerton PUC operators had measured chlorine residuals at Well 5 daily, as they should have, during the critical period when contamination was entering the system.

. For years, the PUC operators engaged in a host of improper operating practices, including failing to use adequate doses of chlorine, failing to monitor chlorine residuals daily, making false entries about residuals in daily operating records, and misstating the locations at which microbiological samples were taken. The operators knew that these practices were unacceptable and contrary to MOE guidelines and directives.

. The MOE inspections program should have detected the Walkerton PUC improper treatment and monitoring practices and ensured that those practices were corrected.

. The PUC commissioners were not aware of the improper treatment and monitoring practices of the PUC operators. However, those who were commissioners in 1998 failed to properly respond to an MOE inspection report that set out significant concerns about water quality and that identified several operating deficiencies at the PUC.

. On Friday, May 19, 2000, and on the days following, the PUC general manager concealed from the Bruce-Grey-Owen Sound Health Unit and others the adverse test results from water samples taken on May 15 and the fact that Well 7 had operated without a chlorinator during that week and earlier that month. Had he disclosed either of these facts, the health unit would have issued a boil water advisory on May 19, and 300 to 400 illnesses would have been avoided.

. In responding to the outbreak, the health unit acted diligently and should not be faulted for failing to issue the boil water advisory before Sunday, May 21. However, some residents of Walkerton did not become aware of the boil water advisory on May 21. The advisory should have been more broadly disseminated.

. The provincial government budget reductions led to the discontinuation of government laboratory testing services for municipalities in 1996. In implementing this decision, the government should have enacted a regulation mandating that testing laboratories immediately and directly notify both the MOE and the Medical Officer of Health about adverse results. Had the government done this, the boil water advisory would have been issued by May 19 at the latest, thereby preventing hundreds of illnesses.

. The provincial government budget reductions made it less likely that the MOE would have identified both the need for continuous monitors at Well 5 and the improper operating practices of the Walkerton PUC.

Id. at 3-5.

2. HON. DENNIS R. O'CONNOR, PART TWO REPORT OF THE WALKERTON INQUIRY, A STRATEGY FOR SAFE DRINKING WATER (2002), available at http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/walkerton/part2/ (last visited June 9, 2003) [hereinafter PART TWO REPORT].

3. For a summary of the recommendations, see id. at 18-32. The recommendations were subdivided into topic areas covering, inter alia: source protection; standards; treatment; monitoring; laboratories; and the role of the provincial and municipals governments, First Nations, and so on.

4. Id. at 405.

5. Id. at 405-10.

6. Safe Drinking Water Act, S.O. 2002, ch. 32 (Can.) [hereinafter (ON)SDWA]. All Ontario statutes and regulations are available online in a very accessible format at Government of Ontario, E-Laws, at http://www.e-laws.gov.on.ca/ (last visited Apr. 16, 2003).

7. Safe Drinking Water Act, 42 U.S.C. §§ 300f to 300j-26, ELR STAT. SDWA §§ 1401-1465.

8. Left out are other issues that merit no material analysis for the purposes of this Article, for which the two Acts are sufficiently similar to disregard, or for which the technical questions extend beyond the scope of this Article. For example: the constitutional structural issues of provincial versus federal regulation; judicial review and appeal procedures, licensing regulations and standards for individual operators; and laboratory licensing procedures.

9. Safe Drinking Water Act: First Reading of Bill 195 (Oct. 29, 2002) (statement of Hon. Chris Stockwell, Minister of Environment), available at http://gateway.ontla.on.ca/documents/Bills/37_Parliament/Session3/index.htm.

10. Safe Drinking Water Act: Second Reading Debate on Bill 195 (Oct. 31, 2002) (statement of Hon. Chris Stockwell), available at http://gateway.ontla.on.ca/documents/Bills/37_Parliament/Session3/index.htm.

11. For a chronology of the legislative history of the 3d Session of the 37th Parliament, which includes dates of Readings and the Assent to Bill 195, see Legislative Assembly of Ontario, Bills, at http://www.ontla.on.ca/documents/Bills/37_Parliament/Session3/index.htm (last visited June 9, 2003).

12. O. Reg. 169/03. Water Quality Standards; O. Reg. 170/03 Drinking Water Systems. All regulations are available online at Government of Ontario, E-Laws, at http://www.e-laws.gov.on.ca/ (last visited June 26, 2003). The draft version of the regulations, New Drinking Water Regulation Under the Safe Drinking Water Act, 2002 (Proposal), EBR Registry No.: RA03E0001 (Jan. 14, 2003), is available at Ministry of the Environment, Environmental Registry, at http://www.ene.gov.on.ca/envision/env_reg/ebr/english/ (last visited Apr. 16, 2003). The Environmental Registry is an online database on which all Ministries are required to publish all environmentally related proposals, actions, and legislative and regulatory initiatives.

13. The 12 parts are: Interpretation; Administration; General Requirements; Accreditation of Operating Authorities; Municipal Drinking Water Systems; Regulated Non-Municipal Drinking Water Systems; Drinking Water Testing; Inspections; Compliance and Enforcement; Appeals; Offences; and Miscellaneous.

14. The (ON)SDWA does not create a right to safe drinking water, only an entitlement to an expectation. This unfortunate legislative choice is premised on Justice O'Connor's conclusion that no substantive right was necessary:

Safe drinking water is clearly a necessity of life, and it is trite to say that a healthy population could not exist without it. It is, however, not the only such necessity. Other examples include clean air, sufficient food, and shelter. Although it can be said that the public is entitled to expect the government to take reasonable steps to ensure fair access to each of these basics, they have not, generally, been the subject of substantive rights.

PART TWO REPORT, supra note 2, at 405-06.

It is further premised on his statement: "I do not detect a need for the declaration of a right. This is not a situation akin to human rights or civil liberties, in which there are concerns about the tyranny of the majority." Id.

15. (ON)SDWA, supra note 6, § 1.

16. Id. §§ 3-9.

17. See id. § 3(1).

18. See id. § 3(1)(a).

19. See id. § 3(1)(b).

20. See id. § 3(1)(e).

21. See id. § 3(1)(i).

22. See id. §§ 10-20.

23. See id. § 19(2).

24. See id. § 19(1). The failure to carry out this duty is an offence under the Act. See id. § 19(3).

25. See id. § 21(1).

26. See id. §§ 21-29.

27. See id. § 21(5).

28. See id. § 22(1).

29. See id. § 23.

30. See id. §§ 30-51.

31. See id. §§ 52-61.

32. See id. §§ 32-35, 44.

33. See id. § 41.

34. See id. §§ 62-80.

35. See id. §§ 62, 63.

36. See id. §§ 81-103.

37. See id. § 81(2).1.

38. See id. § 81(2).2.

39. See id. § 81(2).8.

40. See id. § 81(2).10.

41. See id. § 92.

42. See id. §§ 104-125.

43. See id. §§ 126-170.

44. U.S. ENVIRONMENTAL PROTECTION AGENCY (EPA), 25 YEARS OF THE SAFE DRINKING WATER ACT: HISTORY AND TREATMENT 6 (1999) [hereinafter 25 YEARS OF THE SDWA].

45. Id.

46. Id.

47. Id. at 7.

48. Id.

49. Id.

50. Id. at 10.

51. 42 U.S.C. § 300f, ELR STAT. SDWA § 1401.

52. See id. § 300f(1)(C)(i), (ii), ELR STAT. SDWA § 1401(1)(C)(i), (ii).

53. See id. § 300f(2), ELR STAT. SDWA § 1401(2).

54. See id. § 300g-1(b)(3), ELR STAT. SDWA § 1412(b)(3).

55. See id. § 300g-3(a), ELR STAT. SDWA § 1414(a).

56. See id. § 300g-3(c), ELR STAT. SDWA § 1414(c).

57. See id. § 300g-4, ELR STAT. SDWA § 1415.

58. See id. § 300g-5, ELR STAT. SDWA § 1416.

59. See id. § 300g-6, ELR STAT. SDWA § 1417.

60. See id. § 300g-8(a), ELR STAT. SDWA § 1419(a).

61. See id. § 300h, ELR STAT. SDWA § 1421.

62. See id. § 300i(a), ELR STAT. SDWA § 1431(a).

63. See id. §§ 300j, 300j-1, -2, -3, ELR STAT. SDWA §§ 1441, 1442, 1443, 1444.

64. See id. § 300j-8, ELR STAT. SDWA § 1449.

65. HEALTH CANADA, GUIDELINES FOR CANADIAN DRINKING WATER QUALITY (1996), available at http://www.hc-sc.gc.ca/ehp/ehd/catalogue/bch_pubs/dwgsup_doc/dwgsup_doc.htm (last visited June 9, 2003) [hereinafter CANADIAN GUIDELINES].

66. HEALTH CANADA, APPROACH TO THE DERIVATION OF DRINKING WATER GUIDELINES (1995), available at http://www.hc-sc.gc.ca/hecs-sesc/water/dwgsup.htm (last visited June 9, 2003) [hereinafter APPROACH TO DERIVATION OF GUIDELINES]. See also Justice O'Connor's comments in PART TWO REPORT, supra note 2, at 149.

67. Ontario Water Resources Act, R.S.O. 1990, ch. O.40; O. Reg. 459/00. For a more detailed history of the Ontario regulations see PART TWO REPORT, supra note 2, at 156.

68. (ON)SDWA, supra note 6, § 4.1.

69. See id.

70. See id. § 5.

71. O. Reg. 505/01, which sets contaminant levels for small systems, has been rolled over as well.

72. PART TWO REPORT, supra note 2. at 151. Presumably, this straight-forward rollover was premised on Justice O'Connor's other observation that "the failures at Walkerton were not failures of the drinking water quality objectives as such, but of the systems that were supposed to ensure that they were met." Id. at 148.

73. 42 U.S.C. § 300g-1(b)(1)(A)(i)-(iii), ELR STAT. SDWA § 1412(b)(1)(A)(i)-(iii).

74. See id. § 300g-1(b)(4)(A), ELR STAT. SDWA § 1412(b)(4)(A).

75. See id. § 300g-1(b)(4)(B), ELR STAT. SDWA § 1412(b)(4)(B).

76. See id. § 300g-1(b)(4)(D), ELR STAT. SDWA § 1412(b)(4)(D), for definition of "feasible."

77. See id. § 300g-1(b)(3)(B), ELR STAT. SDWA § 1412(b)(3)(B).

78. See id. § 300g-1(b)(1)(B)(i), ELR STAT. SDWA § 1412(b)(1)(B)(i).

79. See id. § 300g-1(b)(1)(B)(ii), ELR STAT. SDWA § 1412(b)(1)(B)(ii). The determination of whether or not to regulate a contaminant is based on the same criteria of § 300g-1(b)(1)(A)(i)-(iii), ELR STAT. SDWA § 1412(b)(1)(A)(i)-(iii).

80. See supra note 66 and accompanying text.

81. APPROACH TO DERIVATION OF GUIDELINES, supra note 66.

82. Id.

83. Id.

84. Id.

85. 42 U.S.C. § 300g-1(b)(3)(C), ELR STAT. SDWA § 1412(b)(3)(C).

86. See id. § 300g-1(b)(3)(C)(i)(I)-(VII), ELR STAT. SDWA § 1412(b)(3)(C)(i)(I)-(VII).

87. See id. § 300g-1(b)(4)(C), ELR STAT. SDWA § 1412(b)(4)(C).

88. See id. § 300g-1(b)(6)(A), ELR STAT. SDWA § 1412(b)(6)(A).

89. 25 YEARS OF THE SDWA, supra note 44, at 10.

90. David Schnare. Environmental Rationality and Judicial Review: When Benefits Justify Costs Under the Safe Drinking Water Act Amendments of 1996, 5 HASTINGS W.-NW. J. ENVTL. L. & POL'Y 65, 65 (1998). This author puts forth a very scholarly look at the evolution of the cost-benefit analysis, EPA's historical reworking of the tests, congressional and Senate debates on the issue, judicial scrutiny, and the overall necessity and practicality of it.

91. PART TWO REPORT, supra note 2, at recommendation 19.

92. See especially 11497 Canada Ltee v. Hudson (Town), [2001] S.C.R. 241, where the Supreme Court of Canada upheld the validity of a municipal pesticide ban in part on Canada's international commitments to domestically implement the precautionary principle.

93. PART TWO REPORT, supra note 2, at 150.

94. See supra note 72 and accompanying text.

95. The contaminants for which Ontario has equal standards are: benzene; cadmium; carbon tetrachloride; cyanide; lead; nitrate; nitrite; and vinyl chloride. See O. Reg. 169/03, supra note 12; 40 C.F.R. § 141.61(a), (c) (MCLs for organic and synthetic organic contaminants); id. § 141.62(b) (MCLs for inorganic contaminants); and id. § 141.80(c)(2) (lead rules).

96. The contaminants for which Ontario has more stringent standards are: barium; benzo(a)pyrene; chloramines; chromium; mercury; monochlorobenzene; selenium; and dioxins. See 40 C.F.R. §§ 141.61(a), (c), 141.62(b); id. § 141.65(a) (maximum residual disinfectant levels); O. Reg. 169/03, supra note 12.

97. See also PART TWO REPORT, supra note 2 at 520, app. A, "An Interjurisdictional Comparison of Water Quality Standards."

98. These are: alachor; aldicarb; arsenic; asbestsos; atrazine; carbofuran; chlordane; copper; diaquat; 1,1-dichloroethylene; dichloromethane; dioseb; lindane; methoxychlor; pentachlorophenol; polychlorinated biphenyls; simazine; tetracholoroethylene; and trihalomethanes. 40 C.F.R. §§ 141.61(a), (b), 141.62(b); id. § 141.64(a) (MCLs for disinfection byproducts); O. Reg. 169/03, supra note 12.

99. Justice O'Connor called for more scientific and regulatory investigation into possible drinking water contamination by pesticides and herbicides, endocrine-disruptors, pharmaceuticals, radionuclides, and the many unregulated industrial chemicals. See generally PART TWO REPORT, supra note 2, ch. 5.5.

100. MCL for Arsenic, 40 C.F.R. § 141.62(b)(16), as amended by U.S. EPA, National Primary Drinking Water Regulations for Arsenic, 66 Fed. Reg. 6975 (Jan. 22, 2001), and U.S. EPA, Minor Clarification of National Primary Drinking Water Regulation for Arsenic, 68 Fed. Reg. 14502 (Mar. 25, 2003).

101. Draft Regulation, supra note 12, at 13.

102. PART TWO REPORT, supra note 2, at 6.

103. (ON)SDWA, supra note 6, § 3(4).

104. See id. § 3(4)(a)-(e).

105. See id. § 7(2).

106. See id. § 7(5).

107. See id. § 14(1).

108. See id. § 15(1).

109. See id. §§ 14(4), 16(1)(b).

110. 42 U.S.C. § 300g-3(c)(3)(i), (ii), ELR STAT. SDWA § 1414(c)(3)(i), (ii).

111. (ON)SDWA, supra note 6, § 18(1). O. Reg. 170/03, supra note 12, at Schedule 16-3.1, defines an "adverse result" for the purposes of § 18(1) of the Act to be, among other things, the exceedance of any standard prescribed under O. Reg. 169/03, Ontario Drinking Water Quality Standards, supra note 12. Reporting procedures for violations are detailed at O. Reg. 170/03, Schedule 16-4 to 16-9.

112. O. Reg. 170/03, supra note 12, at Schedule 19-2(1)(a), (b).

113. O. Reg. 170/03, supra note 12, at Schedule 19-2(2).

114. 42 U.S.C. § 300g-3(c)(1)(A), ELR STAT. SDWA § 1414(c)(1)(A).

115. See id. § 300g-3(c)(1)(C), ELR STAT. SDWA § 1414(c)(1)(C).

116. Public Notification Rules, 40 C.F.R. § 141.202(a)(8). Violations of fecal coliform or E. Coli limits, nitrates, chlorine dioxide, and turbidity are itemized. Id. § 202(a)(1)-(7).

117. See id. § 141.202(3)(c).

118. See id. § 141.202(3)(c)(1)-(3).

119. See id. § 141.203(c).

120. See id. § 141.203(b)(1).

121. See id. § 141.204(a).

122. See id. § 141.204(b).

123. (ON)SDWA, supra note 6, § 11(2); O. Reg. 170/03, supra note 12, § 11(1).

124. Id. § 11(6).

125. Id. § 11(7).

126. Id. § 11(9).

127. Id. § 11(10).

128. For a thorough review of the details of the CCR rule and a brief commentary about its impacts, see Hayle Abraham, Annual Report Cards for Community Water Systems: The ABC's of Consumer Confidence Reports Under the Safe Drinking Water Act, 5 ENVTL. LAW, 605 (1999).

129. CCR Rule, 40 C.F.R. §§ 141.152, 141.153(a).

130. See id. § 141.155(b).

131. 42 U.S.C. § 300g-3(c)(4)(B)(i), ELR STAT. SDWA § 1414(c)(4)(B)(i); 40 C.F.R. § 141.153(b)(1), (2).

132. 40 C.F.R. § 141.153(b).

133. 42 U.S.C. § 300g-3(c)(4)(B)(ii), ELR STAT. SDWA § 1414(c)(4)(B)(ii).

134. An MCLG is defined for the CCR as "the level of a contaminant in drinking water below which there is no known or expected risk to health. MCLG allow for a margin of safety." 40 C.F.R. § 141.153(c)(1)(i). An MCL is "the highest level of a contaminant that is allowed in drinking water. MCLs are set as close to the MCLGs as feasible using the best available treatment technology." 40 C.F.R. § 141.153(c)(1)(ii).

135. 42 U.S.C. § 300g-3(c)(4)(B)(iii)(I)-(III), ELR STAT. SDWA § 1414(c)(4)(B)(iii)(I)-(III); 40 C.F.R. § 141.153(d).

136. 42 U.S.C. § 300g-3(c)(4)(B)(iii)(IV), ELR STAT. SDWA § 1414(c)(4)(B)(iii)(IV).

137. See id. § 300g-3(c)(4)(B)(iv), ELR STAT. SDWA § 1414(c)(4)(B)(iv).

138. See id. § 300g-3(c)(4)(B)(v), ELR STAT. SDWA § 1414(c)(4)(B)(v).

139. 40 C.F.R. § 141.153(h).

140. PART TWO REPORT, supra note 2, at 469 (emphasis added).

141. O. Reg. 170/03, supra note 12, § 11(9).

142. The legal tradition in Canada has, by and large, established far more administrative avenues of redress and thus put less reliance in the civil courts for all sorts of regulatory enforcement. See also CANADIAN ENVIRONMENTAL LAW ASS'N, IN THE WAKE OF THE WALKERTON TRAGEDY: THE TOP 10 QUESTIONS 26 (2003).

143. (ON)SDWA, supra note 6, § 105(1).

144. See id. § 105(2). The recipient of an order can seek a review of the order to the Director (a civil servant appointed by the MOE under the Act to administer any aspect of the Act), who may confirm, amend, or revoke the order and whose decision is reviewable by the Environmental Review Tribunal. See id. § 107.

145. The Director will be any civil servant appointed by the MOE to administer any portion of the Act. See id. § 2(2).

146. See id. § 121(1).

147. See id. § 121(3).

148. See id. § 120.

149. 40 C.F.R. §§ 141.21—141.30.

150. Id. § 141.40.

151. See id. § 141.31(a) (requires that all test results be reported with 10 days) and § 141.31(c) (requires that adverse results be reported within 48 hours).

152. See id. § 40 C.F.R. 141(b).

153. 42 U.S.C. § 300g-3(b), ELR STAT. SDWA § 1414(b).

154. See id.

155. See id. § 300g-3(g)(3)(A), ELR STAT. SDWA § 1414(g)(3)(A).

156. An imminent drinking water hazard is

a condition of the system or a condition associated with the system's waters, including any thing found in the waters, (i) that adversely affects, or is likely to adversely affect, the health of the users of the system, (ii) that deters or hinders, or is likely to deter or hinder, the prevention or suppression of disease, or (iii) that endangers or is likely to endanger public health.

(ON)SDWA, supra note 6, § 2(1)(i)-(iii).

157. See id. § 109(1).

158. See id. § 108(1).1(ii).

159. 42 U.S.C. § 300i(a), ELR STAT. SDWA § 1431(a).

160. See id.

161. Environmental Bill of Rights, S.O. 1993, ch. 28, § 84(1).

162. O. Reg. 73/94, § 9.

163. PART TWO REPORT, supra note 2, at 406.

164. 42 U.S.C. § 300j-8(a), ELR STAT. SDWA § 1449(a).

165. 42 U.S.C. § 7604(a), ELR STAT. CAA § 304(a) (Clean Air Act). See also Clean Water Act, 33 U.S.C. § 1365(a), ELR STAT. FWPCA § 505(a); Toxic Substance Control Act, 15 U.S.C. § 2619(a), ELR STAT. TSCA § 20(a); Resource Conservation and Recovery Act, 42 U.S.C. § 2972(a), ELR STAT. RCRA § 7002(a); Emergency Planning and Community Right-To-Know Act, 42 U.S.C. § 11046(a), ELR STAT. EPCRA § 326(a); Endangered Species Act, 16 U.S.C. § 1540(g), ELR STAT. ESA § 11(g); and Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9659(a), ELR STAT. CERCLA § 310(a).

166. See 42 U.S.C. § 300j-8(a), ELR STAT. SDWA § 1449(a).

167. See id. § 300j-8(b), ELR STAT. SDWA § 1449(b).

168. See also 42 U.S.C. § 7604(a), ELR STAT. CAA § 304(a); 33 U.S.C. § 1365(a), ELR STAT. FWPCA § 505(a); 15 U.S.C. § 2619(a), ELR STAT. TSCA § 20(a); 42 U.S.C. § 2972(a), ELR STAT. RCRA § 7002(a); 42 U.S.C. § 11046(a), ELR STAT. EPCRA § 326(a); 16 U.S.C. § 1540(g), ELR STAT. ESA § 11(g); and 42 U.S.C. § 9659(a), ELR STAT. CERCLA § 310(a).

169. 42 U.S.C. § 300j-8(e), ELR STAT. SDWA § 1449(e); 42 U.S.C. § 7604(g), ELR STAT. CAA § 304(g); 33 U.S.C. § 1365(e), ELR STAT. FWPCA § 505(e); 15 U.S.C. § 2619(a)(3), ELR STAT. TSCA § 20(a)(3); 42 U.S.C. § 2972(f), ELR STAT. RCRA § 7002(f); 42 U.S.C. § 11046(g), ELR STAT. EPCRA § 326(g); 16 U.S.C. § 1540(g)(1)(A), ELR STAT. ESA § 11(g)(1)(A); 42 U.S.C. § 9659(h), ELR STAT. CERCLA § 310(h).

170. While a thorough review of the 30 years of environmental citizen suit jurisprudence is clearly a topic unto itself, it is sufficient here to highlight the importance of the citizen suit right by describing a few of the more significant victories. In the following cases either or both civil penalties and injunctive relief were awarded. The high watermark of environmental injunctions jurisprudence came (and went) with Tennessee Valley Auth. v. Hill, 437 U.S. 153, 8 ELR 20513 (1978), where citizens won a permanent injunction under the Endangered Species Act against the building of a dam in an area thought to be the only known habitat of the rare snail darter fish. In Natural Resources Defense Council v. Texaco Ref. & Mktg., 2 F.3d 493, 23 ELR 21328 (3d Cir. 1993), the plaintiffs successfully obtained a permanent injunction ordering compliance with the parameters of a Clean Water Act (CWA) permit. In Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 30 ELR 20246 (2000), citizen plaintiffs successfully sought civil penalties (payable to the government) for mercury discharges in violation of the CWA. Finally, in Sierra Club v. Simkins Indus., 847 F.2d 1109, 18 ELR 21053 (4th Cir. 1988), civil penalties payable to the government were awarded for a failure to comply with reporting duties under the CWA. The CWA, 42 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607, has likely seen the most prolific use of its citizen suit provision, largely because of the publicly available discharge monitor reports that make violations easy to discover and to prove.

171. 42 U.S.C. § 300j-8(a)(1), ELR STAT. SDWA § 1449(a)(1).

172. The question of "ongoing" versus "past" violations as a statutory jurisdictional prerequisite has been thoroughly litigated in the United States, the unfortunate lead case being Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49, 18 ELR 20142 (1987). In Gwaltney, the failure to show a violation of the CWA at the time of filing barred the citizens' action. The better model for a citizen' suit provision is found in the Clean Air Act, which permits an action for past violations based on the statutory language that permits a plaintiff to bring an action against any person "who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation …." 42 U.S.C. § 7604(a)(1), ELR STAT. CAA § 304(a)(1) (emphasis added).

173. 980 F.2d 1, 23 ELR 20361 (1st Cir. 1992).

174. 885 F. Supp. 905 (M.D. La. 1994).

175. See supra note 167.

176. See supra notes 9-10 and accompanying text.

177. See supra note 102 and accompanying text.