On May 10, 2014, the Public Health Agency of Canada published new draft regulations, the Potable Water on Board Trains, Vessels, Aircraft and Buses Regulations (the "Regulations"), to modernize the regime governing the safety and quality of drinking water on federally regulated airplanes, trains, ships and buses. The Executive Summary of the Regulations indicates that the changes were made due to potential public health risks associated with water and to protect the traveling public. Perhaps the most surprising aspect of this development is that the regulations they are intended to replace, the Potable Water Regulations for Common Carriers ("PWRCCs"), are now 60 years old and have never been significantly amended.
Updating 60-year old Potable Water Regulations
The PWRCCs are exceptionally sparse by modern standards; the entire regulation is only 13 sections long. Although the PWRCCs do require that potable water systems aboard conveyances be protected from contamination and tampering, separated from non-potable water distribution systems, and maintained in a sanitary condition, the vast majority of these key terms are undefined.1
The proposed new Regulations will be much more specific with respect to applicability, quality control, sampling, testing and recordkeeping. The Regulations will apply to "operators" (meaning persons or entities that carry on a business of transporting passengers) of "conveyances" (meaning all aircraft, vessels, buses and trains used for interprovincial or international transportation of passengers and authorized under a Canadian or foreign law to transport at least 25 persons). "Passenger" is defined as a person who is carried on board a conveyance under a contract, but excludes the master, pilot or driver, or a crew member working on board.
Under the Regulations, requirements in relation to potable water will be extended beyond drinking water to apply also to water used for the preparation of food and for hand washing or oral hygiene. Potable water provided by way of onboard equipment will be required to meet the microbiological guidelines for E. coli set out in the Federal-Provincial-Territorial Committee on Drinking Water's Guidelines for Canadian Drinking Water Quality and will be required to be taken from a source considered by a federal, provincial, state or regional government (or by an entity owned or controlled by such a government) to be a source of water suitable for human consumption. However, vessels will be able to obtain water from alternative sources if the water is loaded on board when the vessel is not: on a river voyage; within 11 nautical miles of a harbour; moored or at anchor; or, if the water is desalinated by on-board equipment such as a reverse osmosis unit or distillation plant in accordance with the manufacturer's instructions.
One of the most significant proposed changes is that the Regulations will impose new sampling, testing and record-keeping requirements for on-board potable water systems. Samples will have to be analyzed for E. coli in accordance with the American Public Health Association's Standard Methods for the Examination of Water and Wastewater. Readily accessible records of the sample date, time, site and results will be required to be maintained for three years. In the case of aircraft, samples will be required to be taken from a tap in the galley and a tap in one lavatory once in every three-month period during which the aircraft is operational, with a minimum of 45 days between samples from the same site. In the case of trains, samples will have to be taken in each rail car from a tap in the galley or bar and a tap in one lavatory once a year, with a minimum of 180 days between samples from the same site. In the case of vessels with sleeping accommodations for passengers, the required frequency of sampling will be once per month during which the vessel is operational, or once every three months for vessels without sleeping accommodations for passengers.
Whenever the E. coli standard is not met, or there are reasonable grounds to believe that the water has become contaminated, disinfection, flushing and sampling of an on-board potable water system will be required. A record of the date and time of disinfection and flushing must be kept for three years.
In the case of water loaded into on-board potable water systems, operators of conveyances will be required to keep a three-year record of the date, the source, the name of the terminal where water is loaded, the name of any person or entity that transports the water from the terminal to the conveyance, and the GPS coordinates or latitude and longitude of the vessel's location during the loading.
Conveyances will be able to satisfy the Regulations for potable water by supplying prepackaged bottled water meeting the requirements of the Canadian Food and Drugs Act and the Food and Drug Regulations (collectively, the "FDR requirements").
Under the Regulations, ice used on conveyances for either contact refrigeration of food or use in beverages will be required to be made from potable water from the on-board system, or to be prepackaged ice meeting all FDR requirements.
Keeping Drinking Water Clean
Over the past several years, some operators, particularly airlines, have been working with the Public Health Agency of Canada's Travelling Public Program to implement potable water management plans ("PWMPs"). According to the government, operators that have PWMPs in place should be well-positioned for compliance with the Regulations. However, even operators with PWMPs should review those plans to determine what, if any, changes will be required in order to ensure compliance with the Regulations' new and detailed sampling and recordkeeping requirements.
The Regulations do not set out penalties for non-compliance, so the general Criminal Code maximum penalty of a $5,000 fine or six months in prison (or both) for summary offences would apply. This exceeds the prior penalties capable of being issued under the existing PWRCCs.2
It is worth noting that neither the PWRCCs nor the proposed Regulations will require conveyances to provide water to passengers, unless food for passengers is prepared onboard.
A 75-day public comment period began when the Regulations were published in the Canada Gazette. This comment period will end on July 24, 2014. The Public Health Agency of Canada's Travelling Public Program will consider the comments it receives before finalizing the Regulations. It is proposed that the new Regulations will come into force six months after they are published in final form.
1 "Potable water" is defined in the PWRCCs; it means water free of pathogenic bacteria and having few than 2.2 coliform bacteria per 100 mL when tested in accordance with the American Public Health Association's Standard Methods for the Examination of Water and Sewage.
2 The maximum penalty for intentional non-compliance under the PWRCCs is $200 or three months in prison.
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