I would like to submit the…

I would like to submit the following comments regarding:
• Proposed amendments to drinking water operator and water quality analyst certification regulation to address impacts of emergencies (019-3513)
• Proposed amendments to wastewater operator licensing regulation to address impacts of emergencies (019-3515)

The proposal states the following:
If the ministry director is of the opinion that an emergency exists or is impending and could result in a drinking water health hazard or significant risk to human health or the environment, and a provincial officer, a director or the minister has issued or is considering issuing an order related to that emergency situation.

Proposed role of uncertified persons to act as the ORO and OIC:
These temporary substitute personnel would only be able to carry out the responsibilities and duties of an Operator-in-Charge (OIC) or Overall Responsible Operator (ORO) if they are Licensed Engineering Practitioners or people who previously held an operator’s certificate of the appropriate type and class (e.g. Class I certificate for OIC, Class 3 or higher certificate for ORO for a Class 3 subsystem).
The transitions from the previous regulation 435/93 that preceded the current regulation O.Reg. 128/04 removed Licensed Engineering Practitioners who are uncertified to act as an Overall Responsible Operator because engineers lack verified operational experience and in particular “hands on field experience”. Engineers without validated hands-on operational experience are unable to understand the scope of operational requirements to competently act in an overall responsible role for the operations of a drinking water subsystem or to competently perform the required operational role or function. Further an engineer operations knowledge is not validated in this proposal through examination as it is required for certified operators. Engineers without study may not necessarily pass the current certification and licencing exams. The addition of Licenced Engineering “Practitioners is a step backwards putting into question the statement” Ontario’s drinking water remains among the best protected in the world.” Only previously certified operators should be even considered as a substitute for a certified/licenced ORO’s in a declared emergency situation and only if they have previously worked in the subsystem and have been informed of any subsystem changes since they last worked in the subsystem. Further these substitute uncertified/unlicensed ORO’s would be able to train uncertified persons who could be allowed to operate. This is problematic and could make any emergency worse if a designated ORO’s competency was not validated prior to designation in a similar way to that of a certified/licenced operator who is eligible to assume the role of ORO.

The inclusion of uncertified persons within O.Reg. 128/04 and O.Reg. 129/04 only erodes the importance of certification and licencing and deviates in the primary goal in the case of the Ontario Water Resources Act concerning wastewater operators in the following subsection: 75 1(h) providing for the licensing of sewage works operators and prescribing the qualifications of persons to whom licences may be issued. It is reasonable to interpret from this power that persons who operate should be provided a specific license and issued a licence that is specific to sewage works/wastewater operator functions.

There are three pillars of Drinking water and Wastewater Certification:
1) Education.
2) Examination; and
3) Experience.

These three pillars are augments through on-the-job training, Director approved training and mandatory renewal training. Obtaining one year of “hands-on” operational experience is a required and essential vital part of an operator-in-training operators training period and a requirement in order to upgrade their certification or licencing to class 1 level status. Engineers and the other occupations listed in this proposal should not be considered as substitute replacements for absent or unable to operate operators as they do not have any validated hands-on direct operational experience as a prerequisite. Just because someone is employed within a drinking water subsystem or in a wastewater facility even if it is of the same type is not validation of operational experience. In the case of Engineers, the proposal does not specify that the proposed eligible engineers have experience that is even in the field of drinking water or wastewater only that they are employed by a drinking water subsystem or wastewater facility. In the development of Ont.Reg.128/04 it was recognized that engineers are not operators as they do not have hands-on operational experience and specialized training that is required of a skilled and competent certified operator. It is for this reason that engineers where not included as a substitute Overall Responsible Operator in O.Reg. 128/04 in any capacity. Any inclusion of just being an engineer as rationale for the qualification for the role of Overall Responsible Operator is a step backwards. This same concern may also be extended to engineers who can be designated an Operator-In-Charge by the owner or operating authority without any Director input or approvals and they should not be allowed to act as Operator-In-Charge in O.Reg. 128/.04 or O.Reg. 129/04 without any validation through certification/licencing and should be removed in regulation without such validation.

The proposals do not require owners or operating authorities to first seek and use eligible certified operators to be considered for the role of Overall Responsible Operator or Operator-In-Charge. Owners and operating authorities should demonstrate to the MECP that they have exhausted the certified/licenced operator pool before engineer substitutes or uncertified persons should ever be considered. This requirement to first seek and use eligible certified operators should be added to regulation where there is presently an allowance for engineers to act as OIC or ORO (in the case of wastewater).
The Ministry is proposing that uncertified/unlicensed engineers act as the most important operator when there is no clear guidance or regulatory description of what the role and responsibility of the Overall Responsible Operator is. Yet, this proposal allows for an uncertified person to act in what is the most import operator and for this person to act (and be responsible in the broadest capacity of any operator) during a declared emergency and its associated risk with proposed confidence.
This proposal does not identify any other sectors within Ontario or any other jurisdiction where uncertified persons can replace certified persons in the manner proposed. More extensive and through consultation is required before these proposals are considered as a good idea.
These provisions where hastily compiled in response to the COVID-19 crisis and require further consultation for any long-term use. These proposals do not report on the frequency of use and the extent of use during the most current declared emergency, the COVID-19 crisis to determine long term benefits for the protection of human health and the natural environment.
The proposal states the following:
An owner or operating authority of a subsystem that uses this power to temporarily employ substitute personnel would be required to:
• notify the ministry director within one day after the first time that substitute personnel are temporarily employed to operate a drinking water subsystem
• provide a written report to the ministry director within 90 days of the end of the emergency that includes the following for each person temporarily employed to operate a drinking water subsystem:
o the person’s name
o qualifications for employment as substitute personnel
o the position held while temporarily employed to operate the subsystem
o summary of operating duties performed (e.g. job description)
o time spent operating the subsystem
o the person’s level of responsibility (e.g. Operator-in-Charge or Overall Responsible Operator)
o the reasons why employing the person was necessary to ensure the continued operation of the subsystem

It is proposed that the owner or operating authority notify the ministry director within one day after the first time that substitute personnel are temporarily employed to operate a drinking water subsystem. As is currently the practice for strike and lockout Director approvals for the use of uncertified persons similarly for the use of uncertified persons during a declared emergency there should be a requirement to report to the Ministry’s District Office at a frequency of once a day or on a lesser frequency as agreed upon by the Director and the Ministry District Office.

The proposed amendments have the following deficiencies regarding compliance and necessary tools:
• Does not include any provisions or penalties for misuse of these provisions during a declared emergency.
• Does not include any provisions for the Director to revoke or suspend any uncertified person or engineer who is appointed by the owner (ie for incompetency);
• Does not include and hold in any way engineers and uncertified persons accountable to any proposed operator code of ethics; and
• Does not require MECP of having direct participation and oversight while these provisions are being used by owners and operating authorities despite the risks identified for a declared emergency.

These proposed regulatory changes do indeed allow the Ministry to act quickly in allowing owners and operating authorities to meet regulatory requirements for administrative reasons but puts into question whether these measures help ensure the province’s drinking water is protected during a declared emergency without the direct participation of the Ministry who is just fine to wait 90 days for a report and has the appearance of a Ministry hands off approach.

In addition to the proposed 90 day post event reporting when non-certified persons who performed operational duties are used, owners and operating authorities should be required to submit a pre-submission that outlines a plan describing how proposed uncertified persons could be used during an declared emergency and submitted to the Director for input. In this way owners and operating authorities are prepared for the next emergency event. The accompanying Strike and Lockout provisions include: “ Requiring system owners or operating authorities to include in the strike or lock-out plan the information needed to satisfy the ministry Director that the system will be operated without significant risk to human health or the natural environment.” There are no similar provisions in the proposed emergency amendments to document operational preparedness and this should be added to the proposal as described above.
If indeed MECP is to require uncertified person to operate drinking water subsystems and waste water facilities there should be added to the proposal a requirement for owners to proactively pre-register uncertified persons that potentially could fulfill the role of absent or unable to operate certified operators during a declared emergency. There should be a requirement that these persons pre-registered and be required to have current Operator-In-Training examination as a minimum starting point. Additional entry level training should be required and added as a pre-request. These persons could then be held in reserve and trained progressive until they approach full certification/licencing. There should also be on record with the Ministry a plan with supporting documentation needed to satisfy the Director as currently required by the Director for strike and lockout planning that the system will be operated without significant risk to human health or the natural environment during a declared emergency.
The proposed emergency-related amendments under section 4 proposes to allow the use of select uncertified persons when “the nature of that emergency is such that it could adversely affect the operation of the subsystem and thereby result in a drinking water health hazard or pose a significant risk to human health or the natural environment”. This rationale is contradictory and as a result problematic to the current strike/lockout provisions where uncertified persons may be used “if the Director is satisfied that the subsystem will be operated without a significant risk to human health or the natural environment.”
Presently during a strike or lockout if the operations reach a point that there would be significant risk to human health or the natural environment, Director orders would be an option for MECP authorizing a MECP selected operating authority to mitigate the risk and to operate the subsystem or facility. Most importantly there would not be any consideration by the MECP Director for the hiring of uncertified persons to mitigate the risk as is being proposed during a declared emergency. In the case of the Walkerton Tragedy for example the use of uncertified persons at the discretion of the owner or operating authority to operate a neglected drinking water system would and could have compounded the impact to human health.
Further the Director’s role in determining the allowance of uncertified persons to act as an operator has the appearance that MECP is only supporting the continuity of service delivery which should not be the role of MECP Director but rather the role of MECP Director should be concerning the risk during a strike or lockout to human health and the natural environment. Thus, there is the appearance that MECP has a role in collective bargaining that ultimately favours one party and puts into question the fairness of the bargaining process.

Posting:
The public’s right to know is not adequately considered in the proposal. The proposed provisions are not in line with existing provisions required for the posting of certificates and licenses of operators of O.Reg.128 and O.Reg.129. Under the present regulations operator certificates are posted at the workplace and listed on the Ontario Water and Wastewater Certification Office website and contribute to effective communication and notice of who is operating the subsystem or facility as part of the Ministry’s Drinking Water Safety Net. Ontario Regulations 128/04 and 129/04 require that the owner or operating authority of a subsystem shall ensure that a copy of the certificate of every certified operator who is employed in the subsystem is conspicuously displayed at the operator’s workplace or at the premises from which the subsystem is managed. Uncertified persons who operate during a declared emergency should similarly be a requirement to post in the workplace that they are operating the subsystem or facility and additionally there should be public notification and annual reporting in the Chief Drinking Water Inspector’s annual report. MECP may also be interested in consulting with The Concerned Walkerton Citizens and the Canadian Environmental Law Association regarding public notification.

The second amendment deals with strike and lockout provisions allowing for the use of uncertified operators. If uncertified persons are approved by MECP and used by the owner during a strike or lockout there should also be posting of these uncertified operators in the workplace, public notification and reporting in the Chief Drinking Water Inspector’s annual report. Under the present regulation certified operators are required to have their drinking water certificates or in the case of wastewater licenses posted at the workplace and their certification/licensing is also listed on the Ontario Water and Wastewater Certification Office website. The addition of a workplace posting requirement and public notification would add another safeguard for the protection of human health and the natural environment and would be consistent with the protective measures outlined in the Walkerton Inquiry Report and the Ministry Drinking water Safety Net.