BILL C-14: THE DRINKING WATER MATERIALS SAFETY ACT LEGISLATIVE HISTORY OF BILL C-14

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1 "> Library of Parliament This document was prepared by the staff of the Parliamentary Research Branch to provide Canadian Parliamentarians with plain language background and analysis of proposed government legislation. Legislative summaries are not government documents. They have no official legal status and do not constitute legal advice or opinion. Please note, the Legislative Summary describes the bill as of the date shown at the beginning of the document. For the latest published version of the bill, please consult the parliamentary internet site at LS-305E BILL C-14: THE DRINKING WATER MATERIALS SAFETY ACT Prepared by: Mollie Dunsmuir, Law and Government Division Nancy Miller Chenier, Political and Social Affairs Division 6 November 1997 LEGISLATIVE HISTORY OF BILL C-14 HOUSE OF COMMONS SENATE Bill Stage Date Bill Stage Date First Reading: 30 October 1997 First Reading: Second Reading: Second Reading: Committee Report: Committee Report: Report Stage: Report Stage: Third Reading: Third Reading:

2 Royal Assent: Statutes of Canada N.B. Any substantive changes in this Legislative Summary which have been made since the preceding issue are indicated in bold print. TABLE OF CONTENTS BACKGROUND DESCRIPTION AND ANALYSIS COMMENTARY NOTES ON BILL C-14: THE DRINKING WATER MATERIALS SAFETY ACT BACKGROUND On 30 October 1997, the Minister of Health introduced Bill C-14, the Drinking Water Materials Safety Act, in the House of Commons. The proposed Act would regulate drinking water materials that are sold or imported into Canada, by setting health-based performance standards and requiring third-party certifications. It would also formally establish national guidelines for the quality of drinking water and provide for research into drinking water quality. This bill was previously introduced on 11 December 1996 as Bill C-76, but had not moved beyond first reading when the general election was called in April Bill C-14 is the same as the previous bill with some minor changes. The full name of the proposed Act is An Act respecting the safety and effectiveness of materials that come into contact with or are used to treat water destined for human consumption. Drinking water materials fall into three categories: treatment additives, or materials that are used to treat water; system components, or materials that come into contact with the water system, from the point of collection to the point of distribution (municipal pipes to household faucets);

3 and treatment devices, which are used by consumers either to disinfect their water supply or to improve the taste, smell or appearance of the water. In 1968, the Department of Health and Welfare published the Canadian Drinking Water Standards and Objectives. This was the first comprehensive Canadian compilation of recommended limits for substances and conditions that affect the quality of drinking water. By 1974, the Department recognized the need to re-examine the existing standards and to add some additional water quality parameters. The federal-provincial working group established for this purpose produced the 1978 Guidelines for Canadian Drinking Water Quality. New information about trace levels of synthetic organic chemicals in drinking water supplies led the Federal- Provincial Advisory Committee on Environmental and Occupational Health in 1986 to establish the Federal-Provincial Subcommittee on Drinking Water to revise and update the Canadian drinking water guidelines on a continuing basis. The Guidelines prepared by the Federal-Provincial Subcommittee on Drinking Water identify substances that have been found in drinking water and are known, or suspected, to be harmful. For each substance, the Guidelines establish the Maximum Acceptable Concentration that can be permitted in water used for drinking. The Guidelines also define a number of desirable aesthetic qualities that give drinking water a pleasing appearance, taste, and odour. To date, guidelines have been established for microbiological, radiological and more than 85 physical or chemical parameters. The Guidelines are intended to apply to all public and private drinking water supplies in Canada. While the Constitution Act does not make direct reference to water resources, water is generally a provincial responsibility; the provinces and territories have primary jurisdiction over the water quality in water supply systems, which are generally municipal. Compliance with the Guidelines can be legally enforced only when a province or territory so chooses. At the same time, however, the federal government retains jurisdiction over public health and safety as part of the criminal law power. This is presumably the basis on which C-14 rests, although the bill has several other aspects. Until the late 1980s, provinces and territories apparently relied upon the advisory program of the U.S. Environmental Protection Agency (US-EPA) to identify which treatment additives or systems components should be allowed in the water supply system. When the US-EPA announced that it was terminating its advisory program in June 1988, some provinces suggested that Health Canada should fill the gap by regulating drinking water treatment additives and system components. Meanwhile, other developments were taking place. In March 1990, the Interdepartmental Committee on Water published "Federal Water Policy: A Progress Report," which stated: NHW [National Health and Welfare] is prepared to introduce legislation for a Canada Drinking Water Safety Act. The Speech from the Throne which opened Parliament in 1989 included a commitment to introduce such water quality legislation. Also in 1990, Canada s Green Plan announced that a Drinking Water Safety Act was imminent: Public confidence in the safety of drinking water is being shaken by

4 the rising number of potentially harmful substances being detected in water supplies. During the Green Plan consultation process, Canadians expressed concern that the Canadian Water Quality Guidelines were inadequate. They requested action to further protect and enhance the quality of water supplies. Therefore: In 1991, the federal government will introduce a Drinking Water Safety Act. This Act will give the Minister of National Health and Welfare the power to develop regulations within federal jurisdiction establishing drinking water quality objectives that would be mandatory. The Act will provide for the developing of quality criteria for materials used in water treatment and point-of-use water treatment devices. As well, the Act will promote research on the health effects of drinking water. (p. 35) Water treatment devices can be divided into two groups, according to function: those that disinfect microbiologically contaminated water and those that improve the overall taste, smell and appearance or remove undesirable chemicals and minerals. The over four million Canadians who depend on private wells for their drinking water, as well as cottagers and campers, can be at risk from contaminated water. Growing public awareness has led to an increased use of water treatment devices for the microbiological purification of water. Microbiological contamination is the primary cause of disease outbreaks from drinking water, and almost 4,500 people are known to have been affected in this way between 1974 and Only 10% of waterborne outbreaks are thought to be reported. Water treatment devices for the removal of taste, odour and chemicals can also generate problems if improperly used. Health Canada has noted that the activated carbon filters used in many water treatment devices can, in themselves, become a source of contamination. As well, softened water is not generally recommended for drinking and cooking because it has increased sodium content, decreased essential mineral content, and the potential for bacterial growth. Health Canada considers it essential that water processed through a water treatment device should meet the standards set out in the Guidelines for Canadian Drinking Water Quality. The Department also insists that activated carbon filters and related packaging, as well as promotional and instructional materials, be clearly labelled: "Use only on municipally treated water or other supply known to be microbiologically safe." Finally, Health Canada already encourages manufacturers to seek certification of their products based on the National Sanitation Foundation (NSF) international standards. The Department feels that certification should make it easier for the Canadian consumer to select an appropriate device. DESCRIPTION AND ANALYSIS Clause 2(1) of Bill C-14 is the definition section; "drinking water material" (DWM) would be

5 broadly defined. Paragraphs 2(1)(a)(b) and (c) would respectively define treatment devices, treatment additives and system components. Clause 2(2) states that, for certification, an authorized person would have to determine that the DWM met the standards prescribed by the regulations. According to the Department, "healthbased performance standards" would be used, rather than design specifications or technical standards. Accordingly, the regulations would set drinking water quality objectives or standards based on scientific health data. For example, the regulations might set the maximum concentrations of various water-soluble materials per litre of finished water and the standard of zero faecal coliform bacteria. The manufacturers of a water purification system would then be free to choose the most suitable or least expensive way of achieving these objectives. Clause 3 sets out the purposes of the proposed Act: the certification and regulation of drinking water materials; the making of national drinking water quality guidelines; and the conduct of research into maintaining and improving the quality of drinking water. The proposed Act would be binding on both federal and provincial governments (clause 4). National drinking water guidelines would be established after consultation with the provinces (clause 5). They would apparently be similar in nature to the Guidelines for Canadian Drinking Water Quality at present published by the Federal-Provincial Subcommittee on Drinking Water. The third of the objectives, research and development into the quality of drinking water is covered in clause 6; it is somewhat unusual to see a specific research mandate in what is primarily a regulatory bill. Clauses 7 to 9 describe the structure of the proposed certification program. The Governor in Council would designate an accreditation organization, which, according to the Department, would be the Standards Council of Canada (SCC). The SCC would then authorize other persons or organizations to certify drinking water materials. According to clause 9, no-one could import or sell a DWM unless it was certified and met the standards prescribed by the regulations at the time the certification was issued. Certification would, however, apply only to DWMs for which standards had been prescribed by regulation. This exemption from certification would be confirmed by clause 27(5), which states that no regulation could subject a DWM to an approval process before standards had been prescribed. Clauses set out a number of "deceptive practices": misrepresentations regarding the nature of any DWM by a person who manufactured, imported or sold it; misrepresentations as to the nature of water for the purpose of selling a DWM; and representations not supported by scientific tests concerning the effect of a DWM on water or human health. The provisions for offences, enforcement and penalty (clauses 13 to 19) seem somewhat broadly worded for an Act that would essentially mandate compliance with a standards process that until now has relied on voluntary compliance. For example, under clause 15, an inspector could not enter a dwelling-place (as opposed to, for example, a commercial building) without the consent of the owner or a search warrant. However, clause 17(1) would allow an inspector to exercise the powers of a search warrant without actually having one, if the conditions for obtaining a warrant existed but it was not feasible to obtain one and provided the inspector was accompanied by a peace officer. The French version refers to "l urgence de la situation," which

6 is clearer, but the power that would be given by clause 17(1) still seems somewhat unusual. The proposed rights and powers of the Minister, which would likewise be extensive, are set out in clauses 20 to 25. Clause 20 would allow the Minister to enter into an agreement with any person, federal institution or province respecting the administration and enforcement of the proposed Act; this would be a useful measure considering the degree of provincial jurisdiction over the area. The Minister could have access to any information relating to DWMs obtained under either the Customs Act or Customs Tariff Act, although he or she could not pass such information on to other parties (clause 21). Clause 22 would allow the Minister to require specific information from any manufacturer, importer or seller of DWM within a specified time. If the Minister deemed the material to be unsatisfactory, he or she could by written notice prevent that person from selling that DWM. Clause 23 is similar as to the scope of the information the Minister could request, but would apply to persons who manufactured, imported or sold any "thing" that was used, "or capable of being used," in the manufacture of a DWM. Clause 24 would allow the Minister to direct that no person could import or sell a DWM that the Minister believed, on reasonable grounds, posed or might pose a risk to human health. Under clause 25, the Minister could apply to a court for an injunction ordering a person to refrain from doing anything that might constitute or lead towards an offence under the proposed Act, or to perform anything that might prevent the commission of an offence. Interestingly, unlike the case in clause 24, the Minister would not have to believe that there was a threat to human health, so that, theoretically, the offence could be as slight as not providing information within the Minister s deadlines. Clause 26 would allow the Minister to set fees for the recovery of costs incurred in relation to administering the Act, subject to any Treasury Board regulations overriding the Ministerial prerogative. Specifically, such fees would cover inspections, testing, analysis, storage, removal, seizure, detention, confiscation, disposal or return of things. A warrantless search under clause 17(1) would be the one action for which costs would not be recovered. The proposed regulation-making power under the bill is set out in clause 27(1)(a) to (h). Clause 27(1)(c), providing the power to set the standards upon which certification would be based, would be one of the key regulatory powers. However, there is also a provision for regulations "designating any thing as a drinking water material for the purposes of this Act." It is not clear what such a regulation could add to the definition of "drinking water material" in clause 2(1). Clauses 28 to 33 deal with offences and penalties. Clause 28 would create a broad scope of offences, only one of which makes specific reference to a health hazard. Clause 28(1)(m) would make it an offence to sell or import a DWM prohibited by the Minister under clause 24(1) in the reasonable believe that it posed or might pose a risk to human health. The penalty would be a fine of up to $300,000 or imprisonment for up to two years, or both. For other specified offences, the fine would be up to $200,000 and the term of imprisonment up to one year; for unspecified offences there could be a fine of up to

7 $100,000 and a term of imprisonment up to 6 months. Clause 30 provides for a "continuing offence," enabling a person to be charged with a separate offence for each day on which the offence was committed or continued. Under clause 31, a director or officer of a company who authorized or acquiesced in an offence would be guilty of that offence. According to clause 32, an employer or principal would be liable for an offence committed by his or her employee or agent unless it could be established that the offence was committed without the consent or knowledge of the employer or principal, and that due diligence had been exercised to prevent the offence. Clauses 34 and 35 are simply evidentiary provisions. Clause 36, dealing with orders of the court, is startling in its breadth. In addition to any other punishment, and having regard to the nature of the offence and the circumstances surrounding it, the court could order a person convicted of an offence under the Act to refrain from engaging in any activity that might result in the continuation or repetition of the offence; take any action to remedy or avoid harm resulting from the offence; publish, in a set form, the facts relating to the offence; notify anyone affected by the offence of the facts relating to it; post a bond to ensure compliance with the orders of the court; submit to the Minister, for up to three years after the conviction, such information about his or her activities as the court considered appropriate and just; compensate the Minister for any remedial or preventive action taken with respect to the offence; perform community service; pay for research into matters surrounding drinking water; and comply with any other reasonable conditions for securing the offender s good conduct. A consequential amendment to the Hazardous Products Act, would exempt drinking water material from Part I of that Act (clause 37). Clause 38 provides that the proposed Drinking Water Materials Act, or portions of it, would come into force on a day or days fixed by the Governor in Council. COMMENTARY There are minor changes from Bill C-76 in clause 15(2)(a) and clause 37 of Bill C-14. Clause 15(2)(a), relating to the issuing of a warrant, now has more precise wording: "that the

8 conditions for entry described in subsection 14(1) exist in relation to the dwelling-place" rather than "that the dwelling-place is a place referred to in subsection 14(1)." Clause 37, referring to the Hazardous Products Act, now includes the words "except where the drinking water material has been exempted from the application of the whole of that Act pursuant to a regulation made under paragraph 27(1)(b) of that Act." The former clause 38 of Bill C-76 has been removed because Bill C-25, on the review, registration, publication and parliamentary scrutiny of regulations, died on the Order Paper when the 1997 election was called. As noted earlier, several sections of the bill are very broadly worded for an Act that would essentially mandate compliance with a standards process that until now has relied on voluntary compliance. For example, on enforcement and powers of inspectors, clause 15 would provide that an inspector could not enter a dwelling-place without the consent of the owner or a search warrant; however, under certain conditions, clause 17(1) would allow an inspector to exercise the powers of a search warrant without actually having one. In addition, while clause 28 would create a broad range of offences, only one, clause 28(1)(m) (selling or importing drinking water material prohibited by the Minister as a risk to human health), refers to possible hazard to human health. Cost recovery conditions, whereby costs are transferred from taxpayers in general to those most directly involved with an activity, are now a common feature in legislation. Like other legislation providing for user charges, Bill C-14 does not specify the categories of users or beneficiaries from whom user fees could be required, leaving open the question of who would be affected. Clause 26 would allow the minister to set fees for the recovery of costs incurred in relation to administering the Act, subject to any Treasury Board regulations overriding the Ministerial prerogative. Such fees would cover inspections, testing, analysis, storage, removal, seizure, detention, confiscation, disposal or return. Bill C-14, however, has exceptionally broad language with respect to cost-recovery, particularly since the level of enforcement would be at the discretion of the Minister. It is not clear, for example, whether the research that would be "authorized" by clause 6 could be the subject of cost-recovery "fees."