Responsibilities and Liabilities of Small Water System Managers and Operators

1. Responsibilities and Liabilities of Small Water System Managers and Operators Presented to the BC Ground Water Association 2007 Convention March 29, 2007 Langley BC Robin Junger, Barrister and Solicitor Robin M. Junger Law Corporation

2. Introductory comments • Legal principles can be complex and application may vary depending on the facts of a case • Comments are general in nature - consult legal counsel and do not rely solely on this presentation • Comments are not to be taken as those of the Ministry of Health, Health Authorities or the Ministry of Environment

3. The Questions • What am I responsible for as an operator or manager of a small water system? • What if something goes wrong? • Can I be fined? • Can I be sued? Will I lose me house? • Can I be sent to jail?

4. Types of responsibilities / liabilities • Responsibility • complying with regulatory requirements under the Drinking Water Protection Act and the Water Act (i.e. what must or must not do) • Liability • Regulatory liability (i.e. fines) • Civil liability (i.e. law suits) • Criminal liability (i.e. jail)

5. Drinking Water Protection Act • Administered by regional health authorities (drinking water officers) • Water supplier responsibilities: • Must obtain and comply with a construction permit • Must obtain and comply with a operating permit • Must meet operator qualifications • Must provide potable water • Must meet monitoring requirements • Must establish an emergency response plan • Must meet reporting and public notice requirements

6. Drinking Water Protection Act (cont.) • May also need to: • Undertake additional monitoring or testing if DWO requests • Give public notice of threats if directed by DWO • Undertake an assessment • Take steps to eliminate a drinking water health hazard • Flood proof wells if assessment shows risk of flooding • Participate in developing a drinking water protection plan

7. Drinking Water Protection Act (cont.) • Some possible exceptions for “small water systems” (i.e. those which serve less than 500 people in any 24 hour period) • DWO may waive construction permit requirement • Exempt from requirement to provide potable water if: • Not providing water for human consumption or food preparation and not connected to a system that does, or • Each recipient has a point of entry or point of use device that makes water potable

8. Water Act (Part 5) and Groundwater Protection Regulations • Administered by Ministry of Environment officials • Places responsibilities on well drillers, pump installers and well owners. • Responsibilities relate to: • registration of qualified well drillers and pump installers • well identification • well drilling and construction • controlling artesian flow • surface seals • well caps and covers • well pumps and wellheads • flood proofing • well operation • prohibition on allowing introduction of foreign matter • well deactivation and closing • temporary wells

9. Finding the relevant provisions of the Water Act and Ground Water Protection Regulation

10. Next Phases of Ground Water Protection • Phases 2 and 3 have been announced but will require further amendments to Regulations • Phase 2 will deal with: • additional standards for well construction, flowing wells, well pumps, flow testing, well operation, and well siting; • water analysis for new and altered wells, • well reports, and • the establishment of offences for which tickets may be issued. • Phase 3 will deal with: • implementing water management plans in designated areas, • drilling authorizations (if necessary) and • other measures for aquifer quality and quantity protection and use.

11. Other relevant legislation • May include (but is not limited to) • Water Utility Act • Local Government Act • Utilities Act • Local Services Act (Subdivision Regulation) • Environmental Management Act

12. Further information • Drinking water protection • http://www.healthservices.gov.bc.ca/protect/dwpublications.html • Ground water • http://www.env.gov.bc.ca/wsd/plan_protect_sustain/groundwater/index.html

13. Possible consequences for failing to meet statutory responsibilities • Warnings / contravention orders • Orders to remedy problems • Government remedies problem (or authorizes someone else to) and the well owner or water supplier is liable for costs • Prosecution for a regulatory offence (fines and potential jail)

14. Civil law claims • Private law suits for damages • Based generally on common law, mainly • Negligence • Breach of contract • Can be complex and expensive • Can include awards for legal costs of successful party

15. Negligence • Elements • Duty of care owed (relationship of proximity) • Breach of duty (standard is “reasonably careful person”) • Harm that is reasonably foreseeable • Liability may extend to third parties • Limits / defences • Courts may limit liability where sound reason exists • One such reason may be limitation of liability for local governments (based on policy/operational distinction) • Application will be context and fact specific

16. Breach of contract • Contract is an exchange of promises (agreement for mutual consideration) • Various situations in which water is supplied may constitute a contractual relationship • Liability will depend on terms of contract • Provision of safe water will likely be an express or implied term

17. Criminal law issues • Rare but potentially very serious • Walkerton is an example: • Koebel brothers charged with various criminal offences including public endangerment, fraud and breach of trust • Pleaded guilty to committing a common nuisance by failing to discharge a legal duty which thereby endangered the lives, safety, or health of the public. • One brother sentenced to a year in jail, the other to nine months conditional sentence (mainly house arrest)

18. Sample scenarios Scenario A Full compliance with both acts Scenario B Monitoring is occurring, but less frequently than required. No problems noted. Well plate ID not installed. Well cap to be installed shortly but did not occur at time of drilling (Dec. ’06).

19. Sample scenarios (cont.) Scenario C Occasional fecal coliform identified in sampling. DWO has ordered assessment completed but water supplier delaying due to lack of time and funds. Water Act engineer has required upgrading of surface seal, but water supplier is refusing as he does not believe it is necessary or a wise use of resources.

20. Sample scenarios (cont.) Scenario D Fecal coliform regularly identified in sampling. Officials make inquiries under both acts. Water supplier withholds information about some recent E-coli samples. Does put extra chlorine in the system and upgrades surface seals of well. Upgrades are, however, not in the manner recently ordered by Water Act Engineer, but water supplier says they were.

21. Suggestions to minimize risks • Create a written compliance plan, which should: • Identify regulatory standards that must be met and any further standards that are voluntarily applied • Specify what are “policy” decisions (where applicable). • Specify how compliance will be assessed and any non-compliance remedies • Clearly allocate responsibilities among relevant people (including back-ups) • Set out clear process for raising concerns within applicable decision-making structures • Consult legal counsel about compliance plan and any questions that may arise

22. Insurance issues • Ensure policy addresses all risks sought to be covered (e.g. some exclude “environmental contamination”) • Ensure policy covers all persons who may be subject to potential claims • Requirements may vary depending on the nature of the entity involved • Carefully assess whether standard policies (e.g. directors and officers liability, commercial general liability) are suitable for water systems