No more Walkertons

Elizabeth Brubaker
National Post
January 23, 2002

The headline of Ian Urquhart’s front-page article told readers of Toronto’s Saturday Star all he wanted them to believe about the Walkerton water tragedy: Disaster Flowed from Ideology. Mr. Urquhart called Justice Dennis O’Connor’s report on the causes of the tragedy a "stinging indictment of the Harris government and its neo-conservative agenda," explaining that "the Tories’ determination to cut spending and red tape laid the groundwork for what happened in May, 2000."

Other reports echoed such sentiments. The National Post‘s Robert Benzie speculated, "If the Walkerton report is not the epitaph for the Common Sense Revolution of Mike Harris, it may well be the swan song for the Conservative’s politically expedient, but controversial program of streamlining government in order to cut taxes."

How nice it would be if the tragedy’s causes were so simple. Once such problems were identified, obvious solutions would present themselves: Boot out the Tories, restore the budgets and our water would be safe.

Unfortunately, things are not so simple. Our water was unsafe long before the Tories came into power and cut budgets and it will continue to be unsafe as long as the real causes of the problems remain unaddressed.

Although Judge O’Connor’s report is harshly – and justifiably – critical of the Tory budget cuts, it makes it abundantly clear the problems plaguing both the Walkerton Public Utility Commission and its main provincial regulator, the Ministry of Environment, have existed for decades.

Inadequate infrastructure: Walkerton’s Well 5, where the contamination entered the town’s system, lacked the one piece of equipment that could have prevented the May 2000 E. coli outbreak: an $8,000 continuous chlorine residual monitor. When contaminants overwhelmed the chlorine dose, such a monitor would have sounded an alarm and automatically shut down the well.

Although the shallow well had been vulnerable to surface contamination ever since it was built in 1978, and although a number of warnings had been sounded to that effect, the utility commission never installed the equipment to protect the well. Nor did regulators under successive governments ever attach to the well’s Certificate of Approval conditions requiring the PUC to do so.

Shoddy operations: A host of operating problems at the PUC likewise dated back several decades. Employees regularly misstated the locations of water samples and made false entries on daily operating sheets. Many of the improper practices had been going on for years before Stan Koebel became general manager in 1988 and did not change to reflect changes in provincial governments, policies, or budgets.

Infrequent and ineffective inspections: In his report, Judge O’Connor recommends annual inspections of water facilities. He notes that inspections have always been infrequent. Indeed, between 1980 and 1991, no formal inspections of the Walkerton facilities occurred. Even the Provincial Auditor’s 1988 recommendation that all water treatment plants be inspected annually fell on deaf ears.

When inspections did occur – in 1991, 1995, and 1998 – inspectors failed to catch two critical deficiencies in Walkerton’s operations. None of the inspectors – before or after the budget cuts decreased their numbers, increased their workloads or dampened their morale – identified Well 5’s vulnerability to surface contamination. Nor did any of the inspectors detect the PUC’s improper chlorination and monitoring practices, despite readily apparent evidence.

Insufficient oversight by PUC: When MOE inspections did reveal problems with water safety and utility operations, Judge O’Connor notes, the public utility commissioners did nothing. Although the justice says that they should have done more – the commissioners were ultimately responsible for the safety of Walkerton’s water – he does not attribute their lax attitude to changes in the regulatory regime. Indeed, he concludes, the commissioners in charge in 2000 "performed their duties in much the same way as their predecessors had. That approach seems to have been inherent in the culture at the Walkerton PUC."

Poor communication of test results: A primary problem identified by Judge O’Connor was the failure of the government to regulate the private labs that test municipal water. The lab that discovered contaminants in Walkerton’s water reported its results to the PUC manager but not to the ministries of health and environment. The judge does not criticize the lab: He notes it acted within the law. Nor does he criticize the government’s decision – initiated under the NDP – to stop providing lab services. Instead, he criticizes the way in which the Tories implemented the privatization decision – in particular, their failure to enact a legally binding regulation requiring labs to notify environment and public health officials of adverse test results.

Once again, the problem was an old one: Judge O’Connor reports that, prior to the privatization of testing, a survey of medical officers of health revealed only 13 of the 21 respondents were receiving test results from public labs, municipalities or the MOE. The failure to report was thus a failure not of ownership but of regulation – one that existed both before and after privatization.

Absence of enforcement: Judge O’Connor quite rightly criticizes the government for not cracking down when lab tests or ministry inspections revealed problems. Throughout the 1990s, labs periodically discovered contaminants in Walkerton’s water samples. And MOE inspectors, while not catching all of the operating problems at the PUC, did catch some of them: In each of the three inspections in the 1990s, inspectors noted insufficient sampling and insufficient chlorine residuals. In no case, however, did the ministry initiate legal action to force the PUC to comply with provincial guidelines or regulations.

Rather than requiring the PUC to follow the rules, the ministry relied on a voluntary approach to compliance. Judge O’Connor refers to the "deeply rooted culture across the MOE that favoured a voluntary abatement approach whenever possible." That culture had prevailed for decades. Indeed, some trace it back to the 19th century. The "distaste for regulation," attributed to the Tories by Judge O’Connor, has in fact always characterized provincial regulation of municipal water providers.

Not until 1997 did the MOE begin to lean towards tougher enforcement of laws governing public health and the environment, and not until March 2000 – two months before the outbreak – did it direct its staff to follow a mandatory compliance approach. The new policy came too late to prevent the Walkerton tragedy. Sadly, it may be too weak to prevent future tragedies. Despite the promise of change, water utilities across the province continue to flout the law with impunity. The latest round of inspections revealed that, of the 218 water facilities visited, 107 failed to comply with provincial standards. Many of the problems had been identified in earlier inspections and some had even been the subject of orders requiring the operators to comply. That so many facilities remain out of compliance calls into question the ministry’s commitment to effective law enforcement.

Why have water problems become so deeply entrenched? Why have successive governments been so reluctant to pass good laws and enforce them strictly? Although Judge O’Connor does not address these issues in his report, the answers lie largely in the province’s close relationship with municipal water providers. Its long-standing practice of funding capital expenditures has doubtless contributed to its reluctance to demand expensive infrastructure improvements. Its operation, through the Ontario Clean Water Agency, of 161 water plants – one third of which are out of compliance – has likewise stayed its regulatory hand. Any crackdown would have put it in the uncomfortable position of prosecuting itself.

Reversing budget cuts on their own will do little. To effectively regulate, the province must get out of the business of funding or operating our water systems. Only then can the government reduce the conflicts of interest that have compromised the public health, and only then can we be confident that the Walkerton tragedy will never be repeated.

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