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O. Reg. 818/21: LICENSING OF SEWAGE WORKS OPERATORS

filed December 3, 2021 under Ontario Water Resources Act, R.S.O. 1990, c. O.40

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ontario regulation 818/21

made under the

Ontario Water Resources Act

Made: November 25, 2021
Filed: December 3, 2021
Published on e-Laws: December 3, 2021
Printed in The Ontario Gazette: December 18, 2021

Amending O. Reg. 129/04

(LICENSING OF SEWAGE WORKS OPERATORS)

1. Section 1 of Ontario Regulation 129/04 is amended by adding the following definition:

“licensed engineering practitioner” means a person who holds a licence, limited licence or temporary licence under the Professional Engineers Act;  

2. Subsection 7 (3) of the Regulation is revoked and the following substituted:

(3) The Director may refuse to issue a licence if,

(a) any of the circumstances described in subsection 11 (1) apply;

(b) the applicant is the holder of any operator’s licence that has been cancelled or suspended or is the holder of any other licence that is suspended or that the Director is authorized under subsection 11 (1) to cancel or suspend; or

(c) the applicant is the holder of an operator’s certificate or water quality analyst’s certificate issued under Ontario Regulation 128/04 (Certification of Drinking Water System Operators and Water Quality Analysts), made under the Safe Drinking Water Act, 2002, that has been revoked or suspended or that the Director is authorized to revoke or suspend.

3. Subsection 7.1 (3) of the Regulation is revoked and the following substituted:

(3) The Director may refuse to issue a licence if the out-of-province regulatory authority has cancelled, suspended or revoked an authorizing certificate or a restricted certificate that was issued to the applicant in respect of one or more of the following occupations or if circumstances exist that authorize the authority to cancel, suspend or revoke such an authorizing certificate or a restricted certificate:

1. Wastewater operator.

2. Water operator.

3. Water quality analyst.

4. Subsection 11 (1) of the Regulation is amended by adding the following paragraphs:

5. The person has worked as an operator for any length of time without being licensed for the type or class of operator he or she worked as, or has held himself or herself out to an owner, the Director or any Ministry employee as holding a type or class of operator’s licence that the person does not hold.

6. The person has previously had an operator’s licence or an operator’s licence or water operator’s licence issued under Ontario Regulation 435/93 (Water Works and Sewage Works), made under the Act, or an operator’s certificate or a water quality analyst’s certificate issued under Ontario Regulation 128/04 (Certification of Drinking Water System Operators and Water Quality Analysts), made under the Safe Drinking Water Act, 2002, cancelled, revoked or suspended for any reason and the Director has reasonable grounds to believe that the person is not competent to be an operator.

7. The person has failed,

i. to exercise the level of care, diligence and skill in respect of a sewage works that a reasonably prudent operator would be expected to exercise in a similar situation, or

ii. to act honestly, competently and with integrity, with a view to ensuring the protection of human health or the natural environment.

8. The person has failed to meet or has contravened any condition that is set out in the person’s licence.

5. Section 16 of the Regulation is amended by adding the following subsections:

(2) At least 14 days prior to the legal strike or lock-out date, the owner of the facility referred to in subsection (1) or a person authorized by the owner shall prepare and submit to the Director, in a format approved by the Director, a strike and lock-out plan for the continued safe and efficient operation of the facility that includes, at a minimum,

(a) a list of all persons proposed to be employed temporarily to operate the facility during the strike or lock-out, which shall include, for each person listed, the person’s,

(i) name,

(ii) current position,

(iii) qualifications, and

(iv) proposed responsibilities during the strike or lock-out; and

(b) a plan for how the facility will be operated during the strike or lock-out, including,

(i) a description of the facility, including its operating systems and processes,

(ii) a description of facility staffing requirements for the normal operation of the facility,

(iii) details of the training to be provided by the owner to all persons described in clause (a),

(iv) information about,

(A) any planned departures from the normal operation of the facility, and,

(B) any application in respect of such planned departures from the normal operation of the facility,

(v) confirmation that all persons described in clause (a) will be trained on the facility operating procedures and that a copy of the operating procedures is readily available at the facility or at the premises from which the facility is managed, and

(vi) confirmation that all persons described in clause (a) will review the emergency procedures for the facility before becoming responsible for the operation of the facility.

(3) The Director shall review the strike and lock-out plan for the facility and shall issue a written notice,

(a) accepting the plan and directing that sections 14 and 15 not apply to the facility for the duration of the strike or lock-out, if the Director is satisfied that the facility will be operated without a significant risk to human health or the natural environment; or

(b) rejecting the plan for the reasons set out in the notice, and informing the owner or a person authorized by the owner that the direction described in subsection (1) has not been provided in respect of the facility, if the Director is not satisfied that the facility will be operated without a significant risk to human health or the natural environment.

(4) The Director may issue a written notice described in clause (3) (a) subject to conditions and may stipulate other steps or information that are required of the system owner or a person authorized by the owner before issuing a final notice.

(5) As part of the review described in subsection (3), the Director may request that the owner or a person authorized by the owner,

(a) submit additional information; or

(b) amend the submitted strike and lock-out plan before issuing a written notice.

(6) If, after issuing a notice accepting a strike and lock-out plan, the Director is of the opinion that a significant risk to human health or the natural environment exists or is imminent with respect to the operation of the facility, the Director may,

(a) require the owner or a person authorized by the owner to amend the strike and lock-out plan accepted under clause (3) (a); or

(b) revoke a notice issued under clause (3) (a).

(7) The Director may waive the 14-day deadline provided for in subsection (2) if the Director is of the opinion that the owner or a person authorized by the owner cannot reasonably prepare and submit the strike and lock-out plan within that time, and that the review of the strike and lock-out plan and the issuance of the written notice can be completed between the submission date and the legal strike or lock-out date.

6. Subsection 21 (1) of the Regulation is revoked and the following substituted:

Training

(1) Subject to subsections (1.1) and (1.2), the owner of a facility shall ensure that every operator employed in a facility is given at least 40 hours of annual training every calendar year.

(1.1) Commencing on January 1, 2022, the hours of annual training may be averaged over each subsequent three-year period during which the operator is employed in a facility but shall not be reduced or prorated for an operator who is employed on a part-time basis.

(1.2) If an operator is employed in a facility for less than 60 days in a calendar year, the requirement of 40 hours of annual training does not apply for that year.

(1.3) The owner shall notify the Director if subsection (1.2) applies to an operator in its employ.

7. Sections 22 and 23 of the Regulation are revoked and the following substituted:

Emergency Situations

Emergency situations

22. (1) The Director may take an action described in subsection (2) if,

(a) an emergency is declared under the Emergency Management and Civil Protection Act and the nature of the emergency is such that it could adversely affect the operation of a facility resulting in a significant risk to human health or the natural environment;

(b) one or more orders made under the Emergency Management and Civil Protection Act in a situation described in clause (a) are continued in successor legislation and remain in place; or

(c) an emergency has not been declared under the Emergency Management and Civil Protection Act, but the Director is of the opinion that a situation exists or is impending which could result in a health hazard or a significant risk to human health or the natural environment and one or more of the following circumstances exist: 

(i) a provincial officer has issued or is considering issuing an order under section 16.1 or 16.2 of the Act in respect of an existing or imminent sewage works emergency,

(ii) a Director has issued or is considering issuing an order under section 61 of the Act in respect of an existing or imminent sewage works emergency,

(iii) a provincial officer, Director or the Minister has issued or is considering issuing an order or notice of emergency response under the Safe Drinking Water Act, 2002 in respect of an existing or imminent drinking water health hazard,

(iv) a provincial officer has issued or is considering issuing an order under section 157.1 of the Environmental Protection Act in respect of an existing or imminent sewage works emergency,

(v) a Director has issued or is considering making an order under section 18 of the Environmental Protection Act in respect of an existing or imminent sewage works emergency, or

(vi) the Minister has issued or is considering issuing an order under section 97 of the Environmental Protection Act in respect of an existing or imminent sewage works emergency.

(2) The following are the actions that the Director may take for the purposes of subsection (1):

1. Extending the expiry date of an operator’s licence issued, reissued or renewed under sections 7 to 12.

2. Determining the expiry date of a licence extended under paragraph 1, which may be any date that is 12 months or less from the expiry date set out on the licence when most recently issued.

(3) The owner of a facility, a person authorized by the owner or an operator may request that the Director take an action or actions described in subsection (2) in respect of the facility.

(4) A request made under this section must be made in a manner and form approved by the Director and contain the information required by the Director.

(5) The Director may require the requester to notify any affected owner, person authorized by the owner or operator of the request described in subsection (4), and to provide written confirmation of that step having occurred.

(6) The actions taken by the Director in accordance with this section may apply for part or all of the duration of the situation described in subsection (1) and its aftermath.

Emergency situations, operators etc.

23. (1) Subject to subsection (2), (3) and (4), if the circumstances described in clause 22 (1) (a) or (b) exist, and despite sections 14, 15 and 17, the owner of a facility or a person authorized by the owner may employ the following persons, even if they do not hold an operator’s licence applicable to that type of facility, to temporarily operate the facility or be designated as overall responsible operator or as an operator-in-charge:   

1. A licensed engineering practitioner.

2. A person who, at any time in the previous 60 months, held an operator’s licence for the applicable type of facility, if the licence has not been revoked or suspended at any time.

3. A certified engineering technician or certified engineering technologist under the Ontario Association of Certified Engineering Technicians and Technologists Act, 1998 who,

i. has at least three years of experience working in the same type of wastewater facility, and

ii. has been trained by a licensed operator or a person described paragraph 2 on the operating duties to be performed.

4. A person who is employed as a manager of one or more facilities, as long as the person,

i. has at least five years of experience working in the type of facility to be operated,

ii. directly manages or supervises licensed operators, 

iii. only operates a facility or facilities at which the person is employed, and

iv. has been trained by a licensed operator or a person described in paragraph 2 on the operating duties to be performed.

5. Any person currently employed in a facility, as long as the person,

i. has at least five years of experience working in the same type of wastewater facility,

ii. is responsible for performing maintenance on facility equipment used to treat wastewater or to adjust or direct the flow, pressure or quality of wastewater within the facility, or is responsible for providing technical support relating to the operation of the facility as a millwright, electrician, instrumentation technician, laboratory technician, maintenance mechanic or process control technician, or an equivalent position,

iii. only operates the type of facility at which the person is employed, and

iv. has been trained by a licensed operator or a person described in paragraph 2 on the operating duties to be performed.

(2) Only the following persons may perform operator-in-charge or overall responsible operator responsibilities and duties as set out in sections 15, 17 and 18:

1. A person described in paragraph 1 of subsection (1).

2. A person described in paragraph 2 of subsection (1), where the licence that the person previously held was of the appropriate type and class for an operator-in-charge or overall responsible operator designation as set out in sections 15 and 17.

(3) An owner of a facility or a person authorized by the owner may employ persons listed in subsection (1) only if it has reasonable grounds for believing that,

(a) there is an existing or impending critical shortage of licensed operators in the facility; and

(b) the use of non-licensed persons is necessary to ensure the safe and efficient operation of the facility and the continued protection of Ontario’s waters.

(4) No person described in subsection (1) shall operate a facility if the person is the holder of any licence that has been cancelled or is suspended, or if the person’s drinking water operator’s certificate or drinking water quality analyst’s certificate issued under Ontario Regulation 128/04 (Certification of Drinking Water System Operators and Water Quality Analysts), made under the Safe Drinking Water Act, 2002, has been revoked or is suspended.

(5) Within seven days of employing the first of one or more persons described in subsection (1), an owner of the facility or a person authorized by the owner shall submit, in writing, to the Director, in the manner and form approved by the Director, information about the circumstances leading to the person’s or persons’ employment in the facility.

(6) An owner or a person authorized by the owner that employs a person under subsection (1) shall provide a written report to the Director within 90 days of the end of the circumstances described in clause 22 (1) (a) or (b) that includes the following in respect of each person:

1. Name.

2. Details showing how the person satisfied the criteria set out in the paragraph of subsection (1) under which the person was temporarily employed to operate the facility. 

3. Position held while employed to operate the facility.

4. Summary of operating duties performed.

5. Time spent operating the facility, including dates and shift number or designation.

6. Whether the person performed operator-in-charge or overall responsible operator responsibilities and duties.

7. Where applicable, time spent performing the responsibilities and duties of an operator-in-charge or overall responsible operator, including dates and shift number or designation.

8. Reasons why employing the person to operate the facility was necessary to ensure the safe and efficient operation of the facility and the continued protection of Ontario’s waters.

(7) The owner shall ensure that records included in the report described in subsection (6) are maintained in accordance with section 19 for at least five years.

Labour laws still apply

24. For greater certainty, nothing in section 22 or 23 or any other provision of this Regulation relieves any person from any obligation to comply with any applicable labour laws or collective agreements, and no action may be taken under those sections solely as the result of the exercise of a right under such a law or agreement.

Commencement

8. This Regulation comes into force on the day it is filed.