ARCHIVED - Drinking Water, Wastewater, and Sources of Drinking Water: Summary of Newfoundland and Labrador's Regulations

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Introduction

While all provinces and territories have laws governing drinking water and wastewater management, there is no regulatory regime governing the same on First Nation lands. The Safe Drinking Water for First Nations Act (the Act), which came into force on November 1, 2013, allows for the development of federal regulations to close this regulatory gap so that residents on First Nation lands have comparable levels of health and safety protections for drinking water as other Canadians.

Subsections 5(3) and 5(4) of the Act allow for regulations made under this Act to incorporate by reference laws of the province/territory, with adaptations to address the realities on First Nation lands. One set of regulations will be developed for each region, to harmonize as much as possible with each province's/territories' specific mechanisms for regulating water and wastewater.

The purpose of this summary is to present the 11 essential regulatory components under the Act. These components have been identified by AANDC, Health Canada, and the Department of Justice as essential to meeting the Act's objective of protecting public health. The summary maps the 11 essential regulatory components against relevant provincial/territorial acts and regulations. These acts and regulations are under consideration for incorporation into federal regulations to be made under the Act. Feedback provided by First Nation leadership, their technical experts, and other stakeholders on this summary will help inform the drafting of federal regulations for the relevant region.

Disclaimer

This summary has been prepared by a third party. It does not represent the Government of Canada's official position on the content of federal regulations to be developed under the Safe Drinking Water for First Nations Act, nor does it represent any position of the provincial government.

Similarly, in no way should this summary be relied on as constituting legal advice of the Government of Canada, nor does it provide a complete description of the content of the province's drinking water and wastewater regulatory regime. Any errors or inaccuracies are not intentional, and the Government of Canada is not responsible for anything resulting from the reader's use of, or reliance on, these materials.  

1. Key Essential Regulatory Component: Protecting sources of drinking water

The Safe Drinking Water for First Nations Act, Section 4(1)(b)

Sources of drinking water need to be protected from contamination. Drinking-water sources in particular need to be protected with the view to protecting human health. Regulatory requirements must protect sources of drinking water from potential sources of contamination, such as requiring minimum distances between wells and septic systems.

Provincial Acts and Regulations under Consideration

Rationale:

The Environmental Protection Act provides that a person shall not release or permit the release of a substance into the environment in an amount, concentration or level or at a rate of release that in the opinion of the minister causes or may cause an adverse effect, unless authorized under the Act or an approval issued under the Act.

The Municipalities Act contains measures so that municipal councils may make regulations that are seen as required to prevent pollution of their drinking water supply source.

The Water Resources Act states that lands surrounding a potential or present source of public water supply may be designated as a protected water supply area.

The Environmental Control Water and Sewage Regulations puts prohibitions on discharges of water sewage or effluent.

The Sanitation Regulations requires that a building or premises where people work, live, or frequent shall have an approved means for the disposal of sewage.

2. Key Essential Regulatory Component: Location, design, construction, modification, maintenance, operation, and decommissioning of drinking water and wastewater systems

The Safe Drinking Water for First Nations Act, Sections 4(1)(c) and 4(1)(e)

Drinking water systems need to be located, designed, constructed, modified, maintained, and operated in accordance with applicable standards so that the drinking water they produce is safe, clean, and reliable. The same principle applies to wastewater systems. Wastewater needs to be treated effectively. These requirements are typically detailed in permits, sometimes known as approvals. All provincial and territorial governments in Canada require some form of permit for drinking water and wastewater systems.

Provincial Acts and Regulations under Consideration

Rationale:

The Water Resources Act requires waterworks and sewage works to have a Permit to Construct and a Permit to Operate issued by the Department of Environment and Conservation, and where the minister is of the opinion that a proposed undertaking is not in the public interest, the minister shall refuse to grant a permit with respect to the proposed undertaking.

The Sanitation Regulations provides that water supply systems must be located, designed, constructed and maintained in keeping with a certificate of approval and conform to the requirements of the Public Health Act and these regulations. These regulations also govern the design, construction and installation of sewage disposal systems.

The Well Drilling Regulations specify construction and location of water wells.

3. Key Essential Regulatory Component: Distribution of drinking water and collection of wastewater by truck

The Safe Drinking Water for First Nations Act, Sections 4(1)(d) and 4(1)(f)

In rural, low-density areas, distribution of drinking water can occur by tanker truck and stored in tanks or cisterns. Similarly, sewage removal by tanker truck from household holding tanks and delivery to treatment facilities may also occur. First Nation communities are often small, remote, and rural and sometimes use these systems. These types of delivery and removal systems may also be used if there is a disruption in normal operations. Regulations will allow for the development of enforceable standards for the construction, operation, and maintenance of equipment associated with bulk transport of drinking water and wastewater.

Provincial Acts and Regulations under Consideration

Rationale:

The Municipalities Act contains the authority for approving dumping sites/stations.

It appears as if the definition of waterworks and water supply system under the Water Resources Act and Sanitation Regulations, respectively, are broad enough to encompass non-piped water delivery systems.

"Private Sewage Disposal and Water Supply Standards" (Government of Newfoundland and Labrador, 2006) requires that wastes from a holding tank should be disposed of at an approved dumping site/station and haulers are to be licensed.

4. Key Essential Regulatory Component: Training and certification of operators

The Safe Drinking Water for First Nations Act, Section 4(1)(a)

Those responsible for the day-to-day operation and maintenance of drinking water and wastewater systems must have the appropriate training and certification. Requirements for the training and certification of operators must be included within regulations and must be proportional to the facility's complexity. Provincial and territorial certification requirements are well established in Canada and can be supported by successful training initiatives such as the Circuit Rider Training Program. Hub-models, wherein a certified operator has responsibility for operating and managing more than one system, should be allowable.  

Provincial Acts and Regulations under Consideration

Rationale:

The Water Resources Act enables the current phasing in of mandatory operator certification, which includes facility classification and grandfathering the latter (which will expire after December 31st, 2014). The Newfoundland and Labrador Operator Certification process has operated using the constitution of the Atlantic Canada Water and Wastewater Voluntary Certification Board (the ACWWVCB), of which it is a member, for guidance.

5. Key Essential Regulatory Component: Treatment standards

The Safe Drinking Water for First Nations Act, Sections 4(1)(f) and 4(2)

Treatment standards are required to manage the risk from hazards that may compromise public health and safety. Regulations must allow for the authority to set standards for physical, chemical, biological and radiological parameters. With respect to drinking water quality, the Guidelines for Canadian Drinking Water Quality is endorsed by a federal-territorial-provincial committee and will be used as a basis for drinking-water quality standards. There will be a need to consider variations to meet local needs for some values, such as total dissolved solids, that are more aesthetic than health-based. Discussions with provinces and territories are needed to determine how the regulation of wastewater treatment standards may change in light of the recent coming into force of the Wastewater Systems Effluent Regulations (SOR/2012-139).

Provincial Acts and Regulations under Consideration

Rationale:

Water Resources Act requires that bacteriological, chemical and physical standards for public drinking water supplies are based on the current edition of the Guidelines for Canadian Drinking Water Quality, 6th Edition, 1996.

6. Key Essential Regulatory Component: Monitoring, sampling, and testing

The Safe Drinking Water for First Nations Act, Sections, 4(1)(g), 4(3)(a), and 5(1)(k)

Monitoring is undertaken to determine whether a system is performing at the appropriate level based on its design. For drinking water, monitoring covers water quality and treatment performance, including source water, process performance, treated water, and distribution system quality. Discussion with provinces and territories are needed to determine how the treatment, monitoring, sampling, and testing of wastewater may be influenced by the recently enacted federal Wastewater Systems Effluent Regulations (SOR/2012-139).

Provincial Acts and Regulations under Consideration

Rationale:

The Water Resources Act requires that all sewage works in the Province shall at all times be maintained, kept in repair and operated in a manner and with those facilities that may be directed by the minister. It provides for the ability of inspectors to enter premises to determine compliance with the Act, undertake inspections, analyze or test a substance on the premises, building or property and inspect and make copies of books and records.

The Environmental Control Water and Sewage Regulations allow the Minister of the Environment to have authority to require monitoring of wastewater effluent.

7. Key Essential Regulatory Component: Collection, recording, and reporting of information

The Safe Drinking Water for First Nations Act, Sections 4(1)(g), 4(3)(a), and 5(1)(k)(l)

The collection, recording, and reporting of information is covered to varying degrees in provincial and territorial regulatory regimes. The collection and recording of information is required to evaluate compliance with standards. For consideration in proposed regulations is a requirement for the reporting of water quality to consumers.

Provincial Acts and Regulations under Consideration

Rationale:

The Communicable Diseases Act requires that boarding housekeepers, physicians, those in charge of a hospital or residential institutions or a teacher must give notice to the Deputy Minister of Health or to the health officer of the local jurisdiction if someone is suspected or known to have a communicable disease. This notice applies to waterborne illnesses.

The Water Resources Act states that  an inspector may inspect all plans, specifications, drawings, books, records, reports, registers, analyses, data and documents relating to the use or undertaking located there.

8. Key Essential Regulatory Component: Handling, use, and disposal of wastewater treatment products

The Safe Drinking Water for First Nations Act, Section 4(1)(h)

Theprimary health hazards associated with wastewater treatment products are excreta-related pathogens, some vector-borne diseases and certain chemicals. Pathogens can survive long enough to be transmitted viably to people and some pathogens can survive long enough to multiply. Requirements for the handling, use and disposal of wastewater treatment products must be designed to protect public health and the environment. Where wastewater treatment products are used, rules are also needed.

Provincial Acts and Regulations under Consideration

Rationale:

The Environment Control and Water and Sewage Regulations contains specified discharge prohibitions relating to the discharge of sewage or effluent into a body of water.  

The Sanitation Regulations requires that a sewage system shall not discharge sewage or effluent onto the ground except where the system is designed so that properly treated effluent is discharged into the soil. Applications for an alternate sewage system may be approved, where, in the opinion of the inspector, systems cannot be used or are not practical. A permit may be issued for a temporary sewage system, the decision for which is to be taken by the inspector.

9. Key Essential Regulatory Component: Emergency measures in response to the contamination of drinking water

The Safe Drinking Water for First Nations Act, Section 4(3)(c)

It is in the most stressful of circumstances that clearly defined roles and responsibilities of various partners is most crucial, and a good regulatory regime will spell out this obligation to communicate potential hazards/contamination events. Communication of potential hazards is a key step in protecting those that may be in harm's way, and in the event of possible or confirmed water contamination or water-borne illness event, there will be little time for determining roles and responsibilities.

Provincial Acts and Regulations under Consideration

Rationale:

The Communicable Diseases Act permits the Minister, subject to the approval of the Lieutenant-Governor in Council, to make general orders to prevent the introduction or spread of communicable disease, including waterborne illnesses.

The Emergency Services Act provides authorities for adopting emergency management plans and declaring of emergencies, both by municipalities and the provinces.

The Water Resources Act states that when an adverse effect has occurred or may occur to water, water is or may be in an unwholesome condition, or an existing waterworks requires alteration, the Minister may direct the person operating the waterworks to alter or make additions to the waterworks, and in the manner and within a time that the Minister considers necessary.

10. Key Essential Regulatory Component: Mechanisms and verification of compliance with the regulations

The Safe Drinking Water for First Nations Act, Sections 4(3)(b) and 5

Mechanisms for ensuring compliance with regulations, e.g. audits, inspections, monitoring by the regulator or third-party, are needed to determine if standards are met, and enforcement mechanisms are a necessary part of the regulations. Careful consideration of the most effective ways of ensuring compliance with regulations in First Nation communities will need to take place to ensure emphasis is placed on prevention, rather than penalty. Compliance issues will be handled on a case by case basis and adapted to account for the realities in First Nation communities. Where there is no immediate risk of harm, the primary focus will be on working together to achieve compliance.

Provincial Acts and Regulations under Consideration

Rationale:

The Communicable Diseases Act allows the minister to direct appropriate individuals to conduct investigations of insanitary conditions, and direct the removal of those conditions.

The Environmental Protection Act details orders related to waterworks, water supply, and sewage works and compliance with orders.

The Health and Community Services Act establishes the order to remove sewage facilities and establishes inspections and orders, in interest of public health, by health officers and inspectors.

The Water Resources Act details emergency license suspension orders, filing of complaints, investigation, orders, and penalties to license holders regarding complaints orders to ensure compliance with Act and directives of public health and safety. The Act details the powers of inspectors, including immunity of a peace officer.

The Municipalities Act states that council may take actions necessary to carry out terms of orders regarding water and wastewater systems.

The Sanitation Regulations states that deviations from terms and conditions make sewage disposal approvals null and void.

11. Key Essential Regulatory Component: Appeal mechanisms

The Safe Drinking Water for First Nations Act, Section 9

Regulations would require a mechanism for appeals. Appeal tribunals provide a mechanism to assure some checks and balances with appropriate public involvement surrounding regulatory decision-making. Appeals may be brought by the regulated community or others affected by the decisions of the regulator.

Provincial Acts and Regulations under Consideration

Rationale:

The Environmental Protection Act details orders related to waterworks, water supply, and sewage works and compliance with orders. The Minister of Environment and Conservation can hear appeals by those aggrieved by a decision or order under this Act. The ability to appeal and the minister's reply must occur within the timelines set out in the Act. Appeals must be made in writing within 60 days, and the minister must reply with a decision within 30 days of receiving the notice of appeal. The Act permits those aggrieved by ministerial orders or decisions to appeal to the Trial Division by filing a notice of appeal in the office of the Registrar of the Supreme Court of Newfoundland.

The Municipalities Act states that council orders made under the authority of the Act may be appealed to the regional appeal boards that can be established under the Urban and Rural Planning Act, 2000.

The Water Resources Act states that the Minister of Environment and Conservation can hear appeals by those aggrieved by a decision or order under this Act. The ability to appeal and the minister's reply must occur within the timelines set out in the Act. Appeals must be made in writing within 60 days, and the minister must reply with a decision within 30 days of receiving the notice of appeal. An aggrieved person may appeal to the Trial Division directly.

 
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