Comprehensive Chronology of Events Surrounding the Walkerton Tragedy Prepared by Alex Wellington with Caitlin Burley and Mary Rollinson-Lorimer November 2007 Basic Facts:

Walkerton is a town of approximately 4800 people, situated north-west of Toronto. Water for Walkerton’s water supply came from groundwater of a number of wells, and it was treated with chlorine before entering the distribution system (Abouchar, 2003: 10515). Due to the events which are outlined below, groundwater was polluted by surface water runoff, and the Walkerton water supply became contaminated with Escherichia coli [E.coli] and Campylobacter jejuni, in May of 2000. 2321 people became ill due to the contaminated water. Ultimately, 1346 people were treated, 65 people were hospitalized, and 7 people died from their illness. 179 people were confirmed to have E. coli 0157: H7, 97 were confirmed to have campylobacter jejuni, and 37 people were diagnosed with other bacteriological infections. 25 people were diagnosed with Hemolytic Uremic Syndrome (HUS) a serious and potentially fatal kidney condition (Snider, 2004: 270; Hrudey et. al., 2003: 7). 1,555 victims had unconfirmed infections. (R.v. Koebel and Koebel, at 20).

The health effects suffered by the victims of the Walkerton Water Tragedy include the following: “Some forms of E. coli 0157: H7 can cause severe illness and death. The elderly and very young are most susceptible. The effects include severe abdominal pain, cramping and bloody diarrhea. There is also a possibility of developing hemolytic uremic syndrome (HUS), which can cause permanent kidney damage and even death. It can also cause acute kidney failure, anemia, low platelet counts, and affect the blood vessels in the brain. Campylobacter jejuni attacks the bowels, causing bloody diarrhea, cramping, fever and abdominal pain.” This information is contained in Justice Bruce Durno’s reasons for decision in R. v. Stan Koebel and Frank Koebel [hereinafter R. v. Koebel and Koebel], at 13. Leading up to Walkerton: Policy Developments, Activities and Social Implications

I. Environmental Protection Legislation and Guidelines: • Ontario Water Resources Act developed in 1956. The act allowed the provincial

government to regulate water use and water quality. It regulates point-source pollution, which is a single identifiable localized source of air, water, thermal, noise or light pollution.1 Under the OWRA, a Certificate of Approval2 was required to establish, alter, extend, or replace new or existing water treatment plants (ECO, 1995: 2).

1 Point Source Pollution consists of: “A single identifiable source that discharges pollutants into the environment.” For example, a smokestack, a sewer, a ditch or a pipe. Natsource Glossary: <http://www.natsource.com/markets/index.asp?s=104> Non-point sources of pollution, by contrast, are ones that cannot be tied to a single, identifiable source. An example of the latter is nitrate pollution from agriculture, since a single source can't be identified. Non-point source pollution “occurs when rainfall, snowmelt, or irrigation runs over land or through the ground, picks up pollutants, and deposits them into rivers, lakes, and coastal waters or introduces them into ground water”. Glossary: <www.polytechnic.edu.na/Schools/civil/libraries/glossarywaterenvironment/GlossaryWaterEnvironment-88.htm>

• Ontario Drinking Water Objectives (ODWO) and Ontario Water Quality Objectives (OWQO) set standards under the OWRA for drinking water quality, through “maximum acceptable concentrations (MAC) for disease-causing bacteria, toxic chemicals and radioactive substances” (ECO, 1995: 3).3 The Objectives are set with consideration of the Canadian Water Quality Guidelines.

• The Ministry of the Environment has responsibility for approving and inspecting waterworks. Sampling and monitoring programs are intended to ensure that water treatment plants comply with required water criteria. The Director (Ministry of Environment) can issue Control Order under the OWRA in cases of non-compliance.

• Ontario Environmental Protection Act developed in 1972. The Act regulates point-source pollution. Municipal-Industrial Strategy for Abatement (MISA) Regulations enacted between 1993 and 1995 apply to facilities (approximately 140) in nine industrial sectors: Petroleum, Pulp and Paper, Metal Mining, Industrial Minerals, Metal Casting, Organic Chemical Manufacturing, Inorganic Chemical, Iron and Steel, and Electric Power Generation.4

• Focus on non-point source water pollution coming from agricultural practices began. The Ontario Environmental Farm Plan was a program developed in 1992. The plan was voluntary and focused on farmers using environmentally sound Best Management Practices (BMPs) (Johns, 2008; 2002).

II. Role of Municipal Government and Walkerton Public Utilities Commission: • Many municipalities own and operate drinking water treatment plants in Ontario, while

others rely upon private companies (Abouchar, 2003: 10515, note 5). For those water treatment plants which had been operated by then Ministry of Environment and Energy (MOEE) prior to November 1993, the operations were transferred to the Ontario Clean Water Agency, a crown agency after that date (ECO, 1995: 1-2).

• Walkerton’s water system was operated by a Public Utilities Commission, which was created under, and governed by, a provincial statute, the Public Utilities Act (Abouchar, 2003: 10515). Such PUCs are creatures of the municipalities; the municipalities are

2 Definition of Certificate of Approval: “A legal document that permits and controls the manner in which activities are carried out (e.g., effluent quality limits). They are binding on the recipient and are directly enforceable by prosecution under provincial legislation.” <http://www.ene.gov.on.ca/envision/deloro/glossary.htm> The term used in Ontario law for a licence or permit to pollute, issued in accordance with the Ontario Environmental Protection Act or the Ontario Water Resources Act. 3 For example, see Ontario Drinking Water Objectives, 1994: <http://wvlc.uwaterloo.ca/biology447/modules/module1/1g_t2.htm> These were subsequently replaced with Ontario Drinking Water Quality Standards (O. Reg. 169/03). <http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_030169_e.htm> “The primary purpose of the Ontario Drinking Water Standards is to protect public health through the provision of safe drinking water. Water intended for human consumption shall not contain disease-causing organisms or unsafe concentrations of toxic chemicals or radioactive substances. Water should also be aesthetically acceptable.” 4 Ontario Ministry of the Environment, Municipal/Industrial Strategy for Abatement. <http://www.ene.gov.on.ca/envision/water/misa/>

financially responsible for the capital borrowing required, and each municipality retains ownership of the assets used by its respective PUC.

• Public Utilities Commissions “have all of the rights and privileges of a municipality, and they have the power to make decisions concerning operations of the water system” (Abouchar, 2003: 10515). The Walkerton Public Utilities Commission was composed of three local businessmen who “relied totally on Stan Koebel [the General Manager] for information and expertise” (Snider, 2004: 284, note 16). Justice Bruce Durno (of the Ontario Superir Court), specifically notes that the three PUC commissioners “felt they had little knowledge of the actual operations” and “relied upon Stan Koebel to operate, maintain, and inform them about water and electricity resources”(R. v. Koebel and Koebel, at 4).

III. Sources of Walkerton’s Water System

• Walkerton’s water system was supplied from three wells, numbered 5, 6, 7. The wells had a computer system, System Control and Data Acquisition (SCADA), which “monitored and recorded the wells’ pumping rates and water levels, but did not provide information on water quality”. (R. v. Koebel and Koebel, at 11).

IV. Environmental Risks - Well Number 5 and Technology Deficits: • In 1978, a survey of the Walkerton wells conducted by Wilson Associates indicated that

well number 5 (in Walkerton) was vulnerable to surface contamination from farming activities on an adjacent farm. The vulnerability of well number 5 was due to its location on “highly fractured bedrock”, which means that “polluted water can penetrate wells through rock fissures and fence-post holes” (Snider, 2004: 270).

• The year Well 5 was drilled (1978), representatives from the MoE had made their concerns known to the former manager, PUC engineering consultants, and town representatives (R. v. Koebel and Koebel, at 10-11). It was recommended, in the survey, that the municipality of Walkerton purchase property adjacent to the well in order to prevent contamination events (Hrudey, n.d.).

• Despite the concerns being raised about potential contamination from farming in relation to well number 5, “no explicit source protection measures were ever adopted” (Hrudey et. al., 2003: 9). The Walkerton Inquiry Report subsequently found that “at the relevant times, the municipality did not have the legal power to control land use on the adjacent farm” (Abouchar, 2003: 10515). This was because the adjacent farm was in another municipality. Only the Public Utility Commission, not the municipality of Walkerton, would have been able to take appropriate measures. The Public Utilities Act “gave the PUC, not the municipality, the power to expropriate land in any jurisdiction in order to protect drinking water” (Abouchar, 2003: 10515). The municipality had to rely upon the PUC commissioners to take adequate steps, which they did not do.

• Technology Deficits: None of the Walkerton wells were equipped with automatic chlorine monitors. Without automatic monitors for chlorine levels, the people in charge of the water system are required to take daily readings by hand (Snider, 2004: 270).

V. Operating Authority: Background and Level of Training of Operators AND Grandparenting:

• Stan Koebel and his brother Frank, were “the only licensed operators regularly working on the water distribution system” at the Walkerton Public Utilities Commission (PUC). (R. v. Koebel and Koebel, at 5). They were both “operators-in-charge”, as defined in the Ontario Water Resources Act.

• An “operator-in-charge” had responsibility for the following: “taking all steps reasonably necessary to operate the processes in a safe and efficient manner, in accordance with relevant operational manuals; ensuring the processes were measured, monitored, sampled and tested, in a manner that permitted them to be adjusted; ensuring records were maintained of all adjustments; ensuring that records of equipment operating status were prepared and available at the end of every operating shift; recording any service to equipment or equipment taken out of service during the shift; recording departures from normal operating procedures during a shift; and recording unusual or abnormal conditions”. (R. v. Koebel and Koebel, at 5).

• Operators also had responsibility for ensuring “that the disinfection process was functioning properly at all times. Where chlorination was required, the MoE [Ministry of Environment] and Medical Officer of Health (MOH) had to be notified immediately if unclorinated or inadequately chlorinated water was directed to the distribution system”. (R. v. Koebel and Koebel, at 6).

• Stan Koebel joined the Walkerton PUC in 1972, as a general labourer (at the age of 19), and became first foreman, and then General Manager in 1988 (R. v. Koebel and Koebel, at 4; Snider, 2004: 271). Stan Koebel, as Director of Walkerton’s PUC, was given water testing authority with insufficient training.

• Frank Koebel joined the PUC in 1975, at the age of 17; he ultimately became the foreman, responsible for the overall operation, when so authorized by his brother (R. v. Koebel and Koebel, at 5). He too had authority given to him without sufficient training.

• Grandparenting: The brothers obtained their knowledge of the water operations from long standing PUC practices and its former manager (R. v. Koebel and Koebel, at 5). As explained by Hrudey et. al. (2003: 12): “The General Manager [Stan Koebel] and his brother [Frank Koebel]… were qualified by experience to operate the mechanical aspects of the water system. [They] were both granted class 2 operator status as part of a voluntary “grandparenting” program in 1988 with neither having taken any training courses nor being required to pass any examinations. They were both upgraded to class 3 operators in 1996, again without any assessment of their knowledge or their skills. Neither operator understood even the most basic elements of assuring chlorine disinfection… The evidence [from the subsequent inquiry] indicated that they clearly lacked any substantive understanding of the need for disinfection to inactivate pathogens in drinking water and the serious health consequences that could arise from failing to maintain adequate disinfection of the Walkerton water supply.”

• Without the “grandparenting”, the brothers would have had to take courses and write exams.

VI. Chlorination Bulletin, ODWO Modification, and Training Issues: • The Chlorination Bulletin, from March 1987, “stipulates that the chlorine residual must

measure 0.5 mg/L after 15 minutes of contact time” (Snider, 2004: 284, note 12). • Operators were given a “detailed step-by-step explanation how to properly take chlorine

residual tests. When the results from bacteriological samples indicated “unsafe water

quality”, the operator was required to immediately notify the MoE and the MOH. After being notified, the MoE could instruct the operator to increase chlorine residuals, record chlorine residuals, and collect special samples to confirm the results and determine the extent of the contamination. If the samples still showed unsatisfactory water quality, the MOH and the MoE had to be notified.” (R. v. Koebel and Koebel, at 7).

• In 1994, Ontario Drinking Water Objectives (ODWO) were modified “to recognize that unfiltered water, supplied from groundwater that was under the direct influence of surface water, required continuous chlorine residual monitoring and effectively continuous turbidity monitoring” (Hrudey et. al. 2003: 11).

• Wells of Well 5’s type were required to “install turbidity monitors to keep the water aerated, and chlorine residual monitors to shut it off if chlorine levels dropped” (Snider, 2004: 270).5 However, as stressed by Laureen Snider (2004: 270) and other commentators, “these rules applied to new wells only; those approved under previous regimes (Well 5 received its operating license in 1978) were ‘grandfathered’” Moreover, Hrudey et. al. (2003: 11), recount that “there were no criteria specified to identify such systems and no program was implemented to review Certificates of Approval to water systems that had been granted before the new policy”.

• Insufficient Training and Knowledge: Walkerton’s PUC General Manager Stan Koebel acknowledged, during the Walkerton Hearings, that he “had never read the Ontario Drinking Water Objectives or the Chlorination Bulletin” (Snider, 2004: 271). He was required to take “at least 40 hours of training per year” (O’Connor, 2002a: 185), but seldom did so. Stan Koebel apparently mistakenly believed that “superchlorinating the water system would make the water safe again” (Snider, 2004: 271).

VII. Mislabelling of Samples: • As Hrudey et. al. (2003: 11) recount: “Samples were routinely mislabeled as to where

they were actually taken.” As recounted in the case of R. v. Koebel and Koebel (at 10): “A former employee often saw [Frank Koebel] take up to three samples from the same location, despite their being labeled from another source. He also saw [Frank Koebel] adding the weekend figures to the well Daily Operating Sheets (DOS). One sheet for each well per month was to include accurate information about chlorine residuals, amounts of chlorine used, and quantity of water pumped. Another employee reported that on some Monday mornings, the DOS would not have been filled out for the previous Saturday and Sunday, despite Frank Koebel having been paid for monitoring the wells that weekend.” Some samples were “taken” from “locations that did not exist”; others were labeled “as having come from addresses where the occupants had no recollection of any samples ever being taken” (R. v. Koebel and Koebel, at 10). Hrudey et. al. (2003: 11) relate that: “[C]hlorine residuals were not measured daily as required and daily chlorine residual monitoring logs were routinely falsified with repeated fictitious entries of exactly 0.5 or 0.75 mg/L. Chlorine residuals measured by the Ministry of Environment inspectors were always lower than 0.5 mg/L yet the discrepancies with the falsified records were neither formally challenged nor rectified”.

5 As is noted by Laureen Snider (2004: 284, note 11): “still water deteriorates more rapidly than water in motion; turbidity monitors keep water circulating through the pipes, water towers and reservoirs that make up the typical water distribution system”.

VIII. Privatization of Water Testing and Closure of Government Water Testing Laboratories: • Prior to 1996, “laboratories under either the MoE or MOH conducted all water sample

testing” (R. v. Koebel and Koebel, at 11). The standard protocol, in the case of adverse test results, “was for the laboratory to notify the manager of the facility and the MoE. The Ministry would then contact the manager and the Regional Medical Officer of Health, and give abatement instructions.”

• As of 1993, private water testing and laboratories and water testing fees had been allowed by the government, but as is noted by Laureen Snider (2004: 284, note 13), “few municipalities switched from the public labs until they were closed down” in 1996.

• Privatization of water-testing began in 1995-1996, and provincial water testing laboratories were closed in 1996. Although the provincial Conservative party privatized water testing in 1995; this was an action started by the New Democratic Party, previously in power.

• The reason for the discontinuation of government laboratory testing services for municipalities was attributable to extensive budget reductions at the provincial level. Post-Walkerton, it was decided that this action offloaded too much responsibility onto municipalities, given resource constraints.

• The provincial Conservative government “did not make regulations that would have required private labs to notify the MoE and the Medical Officer of Health of adverse test results” (Abouchar, 2003: 10516). The notification requirement was a guideline, but not a law.

• GAP EnviroMicrobial Services, who had been doing testing for the Ministries, closed in April of 2000. Up until closing, GAP EnviroMicrobial Services had continued the practice of notifying the municipality and the MoE of adverse samples. A private water testing company, A and L Canada Laboratories East, was placed in charge of testing the drinking water in Walkerton. The General Manager of the Walkerton PUC, Stan Koebel, instructed the president of A and L Labs (Robert Deakin) to “report testing results to the PUC in care of him” (R. v. Koebel and Koebel, at 12).

IX. Inspection Reports: • The Ministry of the Environment, charged with responsibility for water safety in Ontario,

inspected Walkerton’s PUC in 1991, 1995, and 1998. The standard practice was that the MoE’s officials would give the operators of the water system “advance warning” of an impending inspection, which would enable officials to get their records into “presentable” condition (O’Connor, 2002a: 198-199).

• In an MoE inspection report, from 1992, “weekly bacteriological quality monitoring” was listed as a deficiency. That 1992 report “provided a schedule for water quality testing, mandating weekly samples of both raw and treated water at the plants/ wells” and at other places throughout the distribution system, “for a total of 13 samples per month” (R. v. Koebel and Koebel, at 8).

• Frank Koebel “was not a direct recipient of correspondence from the MoE regarding chlorination”. Frank did attend a conference, in 1993, “which included presentations on chlorination systems maintenance and proper distribution system record keeping” (R. v. Koebel and Koebel, at 7).

• In 1995, an inspector “reported E. coli in several water samples, low chlorine residuals, and too few water samples submitted for testing” (Snider, 2004: 271). A letter was sent by MoE staff, raising “concerns about the minimum recommended sampling for water works” and reminding Stan Koebel that “all water supplies were susceptible to some extent to bacteriological contamination at their supply source and within the water works, and could become a health hazard”. (R. v. Koebel and Koebel, at 6).

• An inspector’s report, prepared in 1996 (relating to inspection in 1995) “noted that E. coli bacteria ranging in numbers from 1 to 4 were present in one or more of the samples collected on three occasions” (R. v. Koebel and Koebel, at 6). There were eight adverse samples in all, taken from Wells 5 and 7 and several other locations in the distribution system, taken from 1995 and the inspection date in 1996. Water samples subsequently collected showed that the water was safe.

• The 1996 report noted that the Walkerton PUC “was not complying with the bacteriological sampling and testing requirements outlined in previously sent documents” (R. v. Koebel and Koebel, at 8-9). That 1996 inspection report set out minimum chlorine residual level to be maintained for all active wells at all times. Stan Koebel “acknowledged receipt of the report, and promised compliance”. There was no other follow-up at that time.

• An inspection report from the Ministry of the Environment, in 1998, raised further concerns about the operations of the Walkerton water system and potential safety risks (Abouchar, 2003: 10516). That subsequent report, prepared by inspector Michelle Zillinger, “found that the problems identified in 1995 were uncorrected, and recommended that the MoE issue a Director’s Order to compel the Walkerton PUC to fix them” (Snider, 2004: 271).

• Michelle Zillinger told Stan Koebel that the PUC’s water quality monitoring program did not meet the minimum sampling program. “Only 8 or 9 of the 13 required samples were being collected from the distribution system monthly” (R. v. Koebel and Koebel, at 9). Continued failure to meet the minimum could result in the issuance of a Directive, which would then make the minimum recommended sampling program legally enforceable. Michelle Zillinger personally expressed concerns to Stan Koebel about the high level of adverse results from the two wells in 1998, and instructed him that it was “critical to maintain proper chlorine residuals at both wells, and in the distribution” (R. v. Koebel and Koebel, at 7). In response, Stan Koebel promised compliance.

• The 1998 Inspection Report was also sent to the Medical Officer of Health and the Clerk of Walkerton.

X. Budget Cuts to Ontario’s Ministry of the Environment and Impacts on Water Protection: • The Ministry of the Environment underwent significant budget cuts between 1994 and

2000, which were especially acute under the Conservative government’s Common Sense Revolution. Conservative Minister Brenda Elliot, subsequently told the Walkerton Inquiry that the MoE was an “over-regulated sector” which suffered from “mission drift” or “focus drift” (Hearings, 26 June: 11, cited by Snider (2004: 271); Krajnc, 2000).

• The Minister recounted that she had received input from business stakeholders, requesting the Ministry to become more responsive and effective, with respect to their needs. The Conservative government, and the Ministry of the Environment, stated their intentions to become more “results-oriented, cost-effective and customer driven”, to

encourage “voluntary action”, to deliver “flexibility and certainty to industry”, and to “simplify rules and eliminate red tape” (O’Connor, 2002a: 462).

• The Conservative government’s Red Tape Commission “directed 131 critical recommendations to the MoE, seven times more than to any other Ministry” (O’Connor, 2002a: 464-465).

• In February of 1996, the operating budget of the Ontario Ministry of the Environment was cut by 42 percent, or $200.8 million (Spurgeon, 2000; Snider, 2004: 271).

• Additionally, the MoE reduced its environmental staff by 750 people, which is approximately 30 percent (CUPE, 2002). From 1995-1996 to 1999-2000, “staff complement [at the MoE] dropped from 2065 to 1374, operating expenditures from $282 million to $174 million” (Snider, 2004: 271).

• The Owen Sound office of the MoE, in particular, also had to contend with problems of high staff turnover and heavier workloads, after the loss of experienced staff (“five environmental officers were lost between 1996-7 and 2000”), as Snider (2004: 271-272 and 275) emphasizes.

• Impacts: Water protection was designed as a “non-core program” (O’Connor, 2002a: 272), and thus low priority was accorded to water.

• The effects of the budget cuts at the MoE, along with government policy directions, are documented in the Report of the Walkerton Inquiry and summarized by Laureen Snider (2004: 272) as follows: “Annual water inspections [by the Owen Sound office] fell from 16 in 1994-1995 to 10 in 1990-2000; time spent on water fell by half” (O’Connor, 2002a: 407-408). Environmental Officers “spent only 1.4 percent of their time on communal water systems”, according to records subsequently subpoenaed for the Walkerton Inquiry. (Snider (2004: 277), citing Hearings on 15 August: 35-40; 13 November: 142, 65-127 and O’Connor (2002a), pages 23-24).

• No Action on Inspection Report: The factors recounted above, about the impacts of the budget cuts on staff morale and schedules, worked in combination with the government antipathy to mandatory enforcement to lead the Ministry of the Environment to reject inspector Michelle Zillinger’s advice.

• There were no directives; no enforcement orders were issued in regard to the Walkerton water system.

• Letters requesting “immediate remedial action” were sent to Stan Koebel, at the Walkerton PUC. Yet, upon Koebel’s lack of response to the situation, he was sent a follow up letter, months later, actually thanking him for “attending to the deficiencies raised” by the Ministry (O’Connor, 2002a: 203).

CHRONOLOGY OF EVENTS, During and After May 5, 2000: A and L Labs “notified Stan Koebel that water supplies labeled as taken from Well 5 raw and treated, had positive results for total coliforms” (R. v. Koebel and Koebel, at 14). The next set of samples, received at A and L Labs on May 9, had no samples from Well 5.

May 8-May 12, 2000: Torrential rains (134 mm), falling over several days6, wash bacteria from cattle manure into Walkerton's shallow town well. Well 5 was ultimately determined to have been the source of contamination. Over the next few days, residents are exposed to E. coli (Escherichia Coli 0157: H7). May 13, 2000: The foreman of Walkerton’s water system, Frank Koebel, “performed a daily check on the system but did not measure the chlorine residual as was recommended by the Ministry of the Environment (MoE) (Abouchar, 2003: 10515). Samples were taken from the office tap on subsequent days, but the foreman made up the chlorine residual number (Snider, 2004: 270) before sending the samples to the lab. May 14-17, 2000: During the periods of May 3-9 and May 16-19, Well 7 was Walkerton’s only source of water. Well 5 was in operation on May 1 and May 2, and between the dates of May 9 and May 15. Contaminated water from Well 5 was likely a significant portion of Walkerton’s water supply on those dates. During the crucial period, Well 7 was operating without a chlorinator, while the equipment was being rebuilt in the PUC shop. This was despite the fact that there was another chlorinator available to be installed while Well 7’s was being rebuilt. Justice Durno of the Ontario Superior Court of Justice subsequently finds that there was no “apparent explanation for operating Well number 7 without a chlorinator” during those crucial periods (R. v. Koebel and Koebel, at 11; 22-23). Frank Koebel was in charge from May 4 to May 15 while the chlorinator for Well 7 was off-line (R. v. Koebel and Koebel, at 14). May 16, 2000: A and L Labs receives samples labeled with the date of May 15, but no samples from Well 5 were included. When the president, Robert Deakin calls Stan Koebel to ask about the lack of samples from Well 5, Stan Koebel says that Well 5 was off-line. The System Control and Data Acquisition (SCADA) recorded that Well 5 was operating on the dates noted above (May 1 and 2, and May 9-15). (R v. Koebel and Koebel, at 14). May 17, 2000: The first symptoms of E. coli begin to surface. Residents complain of bloody diarrhea, vomiting, cramps, abdominal pain, and fever. It will be two more days before family and emergency room physicians detect a pattern and begin to suspect a public health problem. Samples from a water main construction site were included in the batch for May 15, and those water samples failed, testing positive for coliform and E. Coli. Other samples labeled as being from Well 7 “treated sample” also tested positive for coliform and E. Coli. The lab informs Stan Koebel of the failure of those samples. Under the rules of the Ontario Drinking Water Objectives, the “results should have been forwarded to the Ministry of Environment office in Owen Sound, then to the local Health Unit where they would trigger a ‘Boil Water’ Advisory” (Snider, 2004: 270). Neither the laboratory nor the water manager forwarded these results to the MoE or the Health Unit (Abouchar, 2003: 10515). The notification requirement was a guideline only and the laboratory handling the water samples was “unaware of its existence” (O’Connor, 2002b: 33; Walkerton Hearings, 17 October 2000: 106). Neither Stan Koebel, the PUC, the

6 This event was said to be a “once-every 30 years phenomenon” (Walkerton Hearings, 15 January, quoted in Snider (2004: 270). In R. v. Stan Koebel and Frank Koebel, it is said that “[a] similar volume would not be expected to fall for sixty years”. R. v. Koebel and Koebel, at 13).

MoE, nor the MOH, knew that A and L was unaware of the policy” (R. v. Koebel and Koebel, at 16). May 18, 2000: Pupils at Mother Teresa Separate School in Walkerton become ill with bloody diarrhoea. According to later statements by Dr. Murray McQuigge, the medical health officer for Grey-Bruce, the Walkerton Public Utilities Commission (PUC) receives a fax from a lab confirming E. coli contamination from the May 15 samples. But water manager Stan Koebel fails to notify the Ministry of the Environment or the public health office. May 19, 2000: Residents of a senior citizens’ home in Walkerton become ill. The Region's local health unit, the Medical Health Office (MHO), receives word of several patients with E. coli symptoms. James Schmidt, a public health inspector, tells Stan Koebel that children were getting ill, and asks Mr. Koebel if the water is okay. Stan Koebel says the water is fine, and makes no mention of the results from May 17. An employee from the MOH, David Patterson, also asks Stan Koebel (later the same day) whether the water is safe. Stan Koebel makes no mention of the May 17 adverse results to him either. (R. v. Koebel and Koebel, at 16) Over the next few days, the public health office makes repeated calls to the utility asking if the water is safe. According to Dr. McQuigge, the utility says there's no problem. The General Manager asserted that he thought the water was “okay”. Stan Koebel then “began flushing the distribution system and super-chlorinating”, throughout the weekend, and reassured the local health unit afterwards that “there was a chlorine residual in the distribution system” (Hrudey et. al. 2003: 12). May 20, 2000: Both James Schmidt and David Patterson contact Stan Koebel, with the latter asking whether there had been any unusual events. Stan Koebel assured them that he was increasing chlorine residuals. Robert McKay, a municipal employee, calls the Spills Action Centre (SAC) “anonymously to warn about the possibility of adverse samples” (R. v. Koebel and Koebel, at 17). Subsequently, Chris Johnston of the SAC informs Stan Koebel about the anonymous complaint. Stan Koebel first responds by saying “we’re not finding anything”, and, after further direct questioning admits only to having had the “odd” adverse sample. Chris Johnston reminds Stan Koebel of his duty to notify the MoE of adverse samples, to which Mr. Koebel replies that he “was unaware of the obligation” (R. v. Koebel and Koebel, at 17). May 21, 2000: The Region's Medical Health Office begins independent testing of the water, confirms E. Coli through stool samples, and issues a boil-water warning. The advisory was to last for six months. That same day, Chris Johnston calls Stan Koebel again, and reminds him of their previous conversation the day before. He asks for paper copies of the “minimal adverse sampling” that Stan Koebel had acknowledged. Stan Koebel tells Mr. Johnston that the samples are from two weeks ago. (R. v. Koebel and Koebel, at 17) Between May 21 and May 22, MOH employees take samples from a number of locations in the Walkerton water system. May 22, 2000: The first death directly linked to E. coli is reported. John Earl, a senior Environmental Officer with the MoE, meets with Stan Koebel, requests and receives the test results from May 17. The tests had not been previously mentioned to the MoE. John Earl requests the Daily Operating Sheets (DOS) from wells, and is told they were not available; he promises to return for them.

May 23, 2000: Health officials receive confirmation from their own tests (on samples taken during May 21 and May 22) that Walkerton water is contaminated with E. coli. By now, more than 150 people are reported to have sought hospital treatment, while another 500 complain of symptoms. A two-year-old girl dies. David Patterson contacts Stan Koebel, and confronts him with with the MOH proof of water contamination. Stan Koebel says that he only found the fax with the test results (from A and L Labs), reporting the failure of water samples, on his desk on May 20 (several days earlier). He is reportedly “crying and distraught” (R. v. Koebel and Koebel, at 18). This is the first time Stan Koebel informs MOH about the adverse results. John Earl, from the MoE, returns to obtain the DOS. Frank Koebel is present at this occasion. There are discrepancies between the System Control and Data Acquisition (SCADA) and the Daily Operating Sheets (DOS) information. (R. v. Koebel and Koebel, at 18) Later the same day, a meeting is held in Council Chambers about the E. coli outbreak. At that meeting, Dr. McQuigge confronts Stan Koebel concerning the issue of chlorinator malfunction. Stan Koebel is heard to say that the “chlorinator had not been working properly for some time”, but he does not relay the information that the chlorinator on Well 7 had been removed for part of May, when according to the SCADA system the Well was operating (R. v. Koebel and Koebel, at 19). May 24, 2000: Dr. McQuigge, declares this Canada's worst outbreak of E. coli. More cases are expected, as E. coli can have an incubation period of up to 10 days, and can be spread from person to person. Up until May 24, Frank Koebel and Stan Koebel continued to drink the water; Frank himself became ill and had to be treated in hospital. May 25, 2000: Dr. McQuigge informs the media that that the PUC had not acted on an earlier fax from a lab confirming E. coli contamination from the May 15 samples. He alleges his office was “clearly misled” about Walkerton's water. The Ontario Clean Water Agency, a provincial crown agency, takes over the Walkerton water system. Stan Koebel goes on sick leave and leaves town. May 26, 2000: The first funeral is held as then Ontario Premier Mike Harris denies Tory government cuts are to blame for the tragedy. Mike Harris tries to blame the NDP. The Ontario Provincial Police announces it is investigating events in Walkerton, as some townspeople launch a class-action lawsuit (Smith v Brockton). May 29, 2000: Fifth death. Province admits knowing for six years that water system is flawed; announces new rules to protect drinking water. May 31, 2000: Facing heavy criticism over the province's role in water safety, Premier Mike Harris orders a public inquiry into the tragedy. By now, six people have died. June 2, 2000: Federal and provincial governments announce a package of financial aid for those affected by outbreak, which is the Walkerton Compensation Plan. June 12, 2000: A house-by-house disinfection program begins, as Walkerton starts cleaning up. Pipes are scrubbed as chlorinated water is pumped through 2,500 customer locations. Throughout the summer months, during this arduous process, Walkerton remains under a boil-water order.

June 14, 2000: The Class Action proceedings, in the case of Smith v. Brockton, commenced in the Ontario Superior Court of Justice. The representative plaintiffs were: Jaime Smith, Alana Dalton, Jaime McDonald, Harvey Hinsperger/ Irene Sales Inc., operating as the Hartley House/ Hartley Hotel. The defendants named in the initial lawsuit are: The Corporation of the Municipality of Brockton, The Bruce-Grey-Owen Sound Health Unit, Stan Koebel, of Walkerton Public Utilities Commission, The Walkerton Public Utilities Commission. Subsequently, Her Majesty the Queen in Right of Ontario is added as a defendant. Third parties are also brought into the proceedings; they are: Ian D. Wilson Associates Limited, Davidson Well Drilling Limited, Earth Tech (Canada) Inc., Conestoga-Rovers and Associates Limited, B.M. Ross and Associated Limited, GAP Enviromicrobial Services Inc., A and L Canada Laboratories East Inc., David Biesenthal and Carolyn Biesenthal. June 27, 2000: The federal government announces it will invest almost $10 million to find better ways to treat Canada's water and wastewater July 13, 2000: Dr. Murray McQuigge says no new cases of E. coli sickness have been reported since June 9. He says Walkerton's health crisis is over, but the boil-water advisory will remain in place for months to come. July 25, 2000: A seventh person dies from E. coli. July 28, 2000: The Ontario Environment Ministry releases a list of 131 municipalities with "deficient" water facilities and announces a plan for upgrades. Among them, are urban centres like Hamilton, Peterborough and Sudbury. August 17, 2000: Stan Koebel, through his counsel, informed counsel for the Walkerton Commission “of the inaccurate water sampling program, the removal of the chlorinator from Well 7, and the inaccuracy of the DOS [Daily Operating Sheets], particularly, the chlorine measurements and the chlorine residuals” (R. v. Koebel and Koebel, at 20). August 26, 2000: New drinking-water protection regulation takes effect in Ontario.7 September 14, 2000: Her Majesty the Queen in Right of Ontario is added as a named defendant in the class action lawsuit of Smith v. Brockton. October 16, 2000: Public inquiry under Justice Dennis O'Connor begins. The Inquiry had a two part mandate: “(1) What caused the outbreak, including the effects, if any, of government policy practice and procedure?; (2) Beyond Walkerton, how can the government ensure the safety of the water supply in Ontario?” (Abouchar, 2003). November 15 2000: Water utility's secretary-treasurer tells the Walkerton inquiry that Stan Koebel believed townspeople had food poisoning or flu.

7 Drinking Water Protection, O. Reg. 459/ 00 made under the Ontario Water Resources Act: <http://www.ene.gov.on.ca/envision/water/sdwa/oreg459.pdf>

November 16, 2000: The province declares Walkerton's water supply safe, but lets the health office deal with lifting boil-water advisory. November 17, 2000: Stan Koebel resigns, after negotiating a $98,000 severance package, including $34,000 to cover unused vacation time. November 30 2000: Mayor David Thomson bursts into tears at inquiry, recalling when he learned Stan Koebel withheld crucial information that might have curtailed the tragedy. December 5, 2000: The boil-water advisory is finally lifted by the health unit, still leaving some residents unsure whether it's safe to resume drinking tap water. December 6-7, 2000: Stan Koebel's brother, Frank, who was Walkerton's water foreman at the time of the outbreak, stuns the inquiry with testimony about drinking on the job and routine falsification of safety tests and records. Frank Koebel recounts that the brothers “routinely mislabeled water samples, under-chlorinated wells, and submitted false reports to the regulatory agency (the MoE)” (Snider, 2004: 270). December 18, 2000: Stan Koebel begins his testimony at the inquiry by apologizing for his role in the tragedy. He confesses he didn't really know what E. coli was, or its health effects. December 19, 2000: Stan Koebel tells the inquiry that water tests and water safety reports for the Ontario government were routinely falsified for about 20 years. He insists he was trained to do this. Stan Koebel “testified that one of the reasons they added less than the required amount of chlorine was because they had received complaints from town residents about the taste of too much chlorine in the water” (Hrudey et. al., 2003: 12). Stan Koebel also testified that provincial officials knew the town wasn't meeting minimum standards for water testing. January 15, 2001: The Certification motion in the Class Action case, Smith v. Brockton case begins in the Ontario Superior Court of Justice. All named defendants, except the Government of Ontario, are certified as defendants (i.e., the municipality, the health unit, the PUC and Stan Koebel). January 16, 2001: The Class Action proceedings are adjoined by Justice Winker, the case management judge, upon consent of all counsel, for settlement discussions. All parties participate in 16 days of negotiations, which result in the Settlement Agreement incorporating the Walkerton Compensation Plan (with slight modifications). February 1, 2001: Tentative settlement reached in class-action suit (Smith v Brockton). Province admits no liability but guarantees compensation plan. March 19, 2001: A class-action settlement is approved for the residents of Walkerton by the Ontario Superior Court of Justice. The settlement provides at least $2,000 for everyone affected by the E. coli outbreak, with all higher claims to be assessed individually, with no cap.

March 27, 2001: The Ontario government delivers a $15-million cheque to the town of Walkerton to cover costs associated with the E. coli outbreak. Two-thirds of the money will go to restoring the municipal water supply, tainted by the deadly bacteria. The other $5 million will pay off the loans the municipality took out to deal with the crisis. April 23, 2001: Municipal politicians in the town of Walkerton vote to pay $87 000 of the controversial $98 000 severance package to Stan Koebel. May 1, 2001: Deadline for opting out of the class action settlement passes. No one does. May 20, 2001: Memorial service held commemorating anniversary of boil-water advisory. June 17, 2001: Governor General Adrienne Clarkson pays tribute to the victims of Walkerton's tragedy by unveiling a memorial stone on a fountain. June 25, 2001: Dr. Richard Schabas, former medical officer of health, tells the Walkerton inquiry he repeatedly warned the Ontario government that funding cuts would compromise public health. June 26, 2001: Brenda Elliott, former Ontario environment minister, tells the inquiry the government acted as a team when making decisions around funding cuts. June 27, 2001: Norm Sterling, also a former environment minister, testifies senior bureaucrats assured him that any risks to public health caused by layoffs and budget cuts were manageable. June 29, 2001: Premier Mike Harris tells the inquiry that he was never warned that budget cuts could lead to serious health risks. July 3, 2001: Inquiry faces first challenge when three local Environment Ministry officials argue judge has no right to find fault with their conduct. Judge dismisses challenge. August 15-27 2001: In closing submissions, lawyers defend their clients, with government blaming Stan Koebel for tragedy and Koebel saying blame must be spread. August 27, 2001: Inquiry wraps up Walkerton hearings. November 26, 2001: A study finds the total cost to clean-up and fix the Walkerton water problem will be at least $64 million. It adds that the number skyrockets to $155 million when human suffering from the tragedy is factored in. January 14, 2002: O'Connor delivers the final Walkerton report to the Ontario government, one week before it is to be released to the public. The first part of the inquiry had heard evidence “from 114 witnesses, including residents, local officials, senior civil servants, two former ministers of environment and the Premier of Ontario” (Hrudey et. al., 2003: 7).

January 16, 2002: Fury erupts over the leaking of the Walkerton inquiry report five days before it is to be officially released to the public. January 17, 2002: The Ontario government announces it will release the first part of the report on Jan. 18, 2002, four days ahead of schedule, because of the leak. Attorney General David Young says he has asked the Toronto police force to investigate the leak. January 18, 2002: The report (Part One, O’Connor, 2002a) is released in Walkerton. The report made clear that “suffering was not limited to those who were ill but included all those who struggled to cope with the severe illness of their loved ones” (Hrudey et. al., 2003: 8). It said that the chain of events leading to the disaster began with Stan and Frank Koebel, the two brothers responsible for the town's water, and was compounded by government budget cuts that undermined the ability of the Ministry of the Environment to pick up on the brothers' shortcomings. Juli Abouchar (2003: 10515) observes that the farmer whose farm was adjacent to the water supply and deemed to be the source of the contamination was not “faulted because he used best management practices in spreading the manure, and there were no additional statutory standards” at the time. Justice Dennis O'Connor's report concludes there had been a “culture of complacency” at the Walkerton PUC, and that the tragedy was preventable (see below in Continuing Developments for elaboration). May 23, 2002: O'Connor delivers the second part of his report to the Ontario government (O’Connor, 2002b). He recommends that Ontario residents be guaranteed by law that their tap water is safe. Additionally, he recommends government spend $280 million to make the water safe with an added $49 million annually for maintenance. Finally, he proposes that the Ministry of the Environment establish an agency to oversee water safety. June 27 2002: The Nutrient Management Act receives Royal Assent. Available online: <http://www.omafra.gov.on.ca/english/agops/index.html> August 20, 2002: The province releases draft regulations under the Nutrient Management Act to protect provincial drinking water. November 23, 2002: An arbitrator awards former public utilities foreman Frank Koebel a $55,000 compensation package by the municipality for his job loss. December 5, 2002: Study finds that most who fell ill from E. coli infection have recovered, although hundreds still suffer from gastrointestinal problems. December 13 2002: The Safe Drinking Water Act receives Royal Assent. Available online: <http://www.ene.gov.on.ca/envision/water/sdwa/index.htm> December 22, 2002: Ontario study finds half of provincial water plants are still violating safety laws implemented after the tainted water tragedy.

February 18, 2003: Opposition parties call for the resignation of Walkerton-area Conservative politician Bill Murdoch for suggesting Tory government bears no responsibility for disaster. Murdoch refuses to apologize. April 23, 2003: Twelve criminal charges of common nuisance, fraud and breach of trust announced against Stan and Frank Koebel. November 30, 2004: Koebel brothers plead guilty to common nuisance endangering lives, health and safety of the public with maximum two-year sentence. Victims tell court about personal impact of the tragedy. December 1, 2004: Defence asks for conditional discharge. Crown asks for close to maximum jail time for Stan Koebel, and conditional sentence for Frank Koebel. December 20, 2004: Stan Koebel is sentenced to one year in jail, Frank Koebel to nine months of house arrest. The ruling is met with absolute silence in the courtroom. In sentencing, Ontario Superior Court Justice said "the offenders are not being sentenced for being the cause of the Walkerton water tragedy.'' October 19, 2006: The Clean Water Act receives Royal Assent. CONTINUING DEVELOPMENTS: XI. Scope of the Walkerton Inquiry:

• The Inquiry had a two part mandate: “(1) What caused the outbreak, including the effects, if any, of government policy practice and procedure? (Part One); (2) Beyond Walkerton, how can the government ensure the safety of the water supply in Ontario?” (Part Two) (Abouchar, 2003).

• Walkerton Inquiry, Part One: The Walkerton Inquiry was a remarkable process in itself. There were 114 witnesses heard, from 20 October 2000 to 8 August 2001 (Snider, 2004: 268). Out of that total, as Snider (2004: 278) emphasizes, more than a quarter were scientists (31 of 114).8

• Some witnesses were “interrogated by a dozen lawyers” (Snider, 2004: 274). On one day, June 25, 2001, as an illustration, there were 75 lawyers listed in the day’s roster of counsel, as is noted by Snider (2004: 285, note 22). There were two lawyers who had the role of head counsel, Paul Cavalluzzo and David Stockwood. There were 24 Issue Papers “commissioned on topics from water supply to risk communication” (Snider, 2004: 277).

• There was a Research Advisory Panel, with seven members, tasked with providing scientific and practical advice.

• An outstanding amount of documentary evidence supplemented the witness testimony. As Snider (2004: 274) recounts: “Records from six provincial ministries, the Ontario Clean Water Agency, Management Board Secretariat, the Cabinet Office and the

8 Snider (2004: 278) notes that: 21 had PhDs in the natural sciences, and 10 had medical degrees.

Premier’s office9 were examined, 50,000 from the MoE alone, perhaps… a million documents from the Provincial Government” in all (O’Connor, 2002a: 483). A database was produced, containing 200,000 scanned documents, and there were 447 exhibits entered into evidence, containing over 3,000 documents (Hearings, 8 March: 1989, cited in Snider, 2004: 274).

• Walkerton Inquiry, Part Two: The second part of the Walkerton inquiry (O’Connor, 2002b), was a less formal process, as is recounted by Juli Abouchar (2003). That second stage involved the activities of “a research advisory panel that commissioned papers from leading experts. The papers were peer reviewed and brought to the public for comment at public meetings” (Abouchar, 2003: 10514). In addition, there had been town hall meetings “held in Walkerton and selected communities to hear further presentations from members of the public”.

• The Walkerton Report, Part B (O’Connor, 2002b), called for the Ontario government to spend $800 million overall, of which a significant portion should be dedicated to replenishment and rejuvenation of the resources of the Ministry of the Environment.

XII. Causal Factors: • Justice Dennis O’Connor states, in the Walkerton Report Part One that the two brothers

are to be held responsible for “improper operating practices” and for practices “unacceptable and contrary to MoE guidelines and directives” (O’Connor, 2002a: 4). Yet, he also states that Stan Koebel “did not intentionally set out to put his fellow residents at risk” (O’Connor, 2002a: 183), and that Stan was “sincerely sorry” (O’Connor, 2002a: 182).

• Moreover, there was also blame to be laid at the feet of the Ministry of the Environment and the Conservative government. As he finds: “It is simply wrong to say that Stan Koebel or the Walkerton PUC were solely responsible” (O’Connor, 2002a: 24).

• As Justice O’Connor (2002a: 24) emphasized: “[The MoE] took no steps to… inform [Koebel] of the requirements or to require training… It would be unreasonable” for the MoE to expect small water system operators to understand the “science behind chlorination” without proper training and background. The costs of taking courses for upgrading were significant: “the price per course jumped from $60 to $600 when the Conservatives cancelled the training subsidy in 1996” (Snider, 2004: 277, citing the Hearings, 16 August: 410). Furthermore, Ministry of Environment inspectors had the responsibility of detecting and correcting deficiencies (O’Connor, 2002a: 182).

• Instead of taking appropriate action, the officials in charge ignored inspector Michelle Zillinger’s “damning report” and recommendations (Snider, 2004: 273). As Justice O’Connor highlights, the MoE “did not invoke any mandatory abatement measures or issue a Director’s Order” (O’Connor, 2002a: 273).

• Legally Binding Measures: Justice O’Connor (2002a) directed attention to the privatization of water testing without proper follow through as being particularly problematic. As he stresses, the government “should have enacted a regulation mandating

9 As Snider (2004: 285, note 24) remarks: “When the Premier’s office sent fewer than the expected number of documents, the Commission took legal proceedings to retrieve deleted messages on hard drives”.

that testing laboratories… notify both the MoE and the Medical Officer of Health” (O’Connor, 2002a:4-5).

• Subsequently, the Ontario Drinking Water Objectives, and the Chlorination Bulletin (mentioned above, in “Leading up to Walkerton: Policy Developments, Activities and Social Implications”) were made legally binding. There were new reporting requirements placed on owners of waterworks, and requirements for corrective action to be taken following adverse samples.

• Warnings Unheeded: Much was made during the inquiry of a letter sent by the Minister of Health to the Minster of Environment, in 1998 warning “that not forcing private water testing laboratories to report adverse results to the local Officer of Health would imperil human health” (Snider, 2004: 276). A subpoenaed “confidential business plan” stated that “risk to human health and the environment may increase” (Hearings, 15 August: 142, cited in Snider (2004: 276)).

• Other evidence presented at the Walkerton Inquiry indicated that ministry staff had tried to warn “senior management, the MoE and Cabinet that the budget reductions presented risks to the environment and public health” (O’Connor, 2002a: 409; Hearings, 8 March; 12 April, cited in Snider (2004: 276)).

XIII. Investigative Study: • The Bruce Grey Own Sound Health Unit, with the assistance of Health Canada and the

Ontario Ministry of Health and Long Term Care, conducted an investigative study to determine the scope, likely cause, and the contributing causes of the outbreak. (R. v. Koebel and Koebel, at 21) The report concluded that “a series of unfortunate circumstances occurred to cause an outbreak of this magnitude”, which included the flooding from rains and the presence of bacteria in the environment, along with a well subject to surface water contamination, and a water treatment system which was overwhelmed by increased turbidity. (R. v. Koebel and Koebel, at 21)

• The factors which specifically contributed to the tragedy were identified as the following: (1) rainfall; (2) elevation of the fields in relation to Well number 5; (3) turbidity documented in Well 5, generated by an adjacent swamp when the swamp was full; (4) Well number 5 was turned on; (5) surface water was pulled into the well; (6) the chlorinator being overcome by turbidity, would have allowed bacteria into the distribution and caused this kind of widespread outbreak; and (7) the available chlorine binds to the turbid water, and is unavailable to kill bacteria. (R. v. Koebel and Koebel, at 21)

• One of the authors of the investigative study, Dr. Andrea Ellis, expressed an opinion that upping the chlorine levels would not have prevented the initial incidents in the tragedy, once the confluence of factors were in place. Nevertheless, it was also her opinion that if the Boil Water Advisory was backed up to May 17 (rather than May 21), the “range of reduction of the number of cases was estimated to be between 200 and 630 cases”, using mathematical modeling (R. v. Koebel and Koebel, at 22).

XIV. Policy Dimensions and Public Concerns • Policy Dimensions: Justice O’Connor also focused on the negative impacts of the

trajectory of anti-regulatory government initiatives, pursued by the Conservative government, such as the Regulatory Impact and Competitiveness Test.

• Under that test, regulation would be warranted only for situations in which “intervention” is “required” after every alternative has been ruled out, costs justified, and the impacts of regulation on competitiveness have been identified and assessed (O’Connor, 2002a: 464). Such regulation as was warranted was to be developed with “early and continuous consultation with affected businesses” (O’Connor, 2002a: 464).

• Overall, Justice O’Connor found that the Conservative government had been seriously lacking in terms of analyzing and managing risks to public health, and had actually ignored repeating warnings of the potential pitfalls of government policies (O’Connor, 2002a: 406).

• Concerns of Citizen Groups: The Walkerton Inquiry provided a very important opportunity for public interest groups to express their concerns about “warnings unheeded”. Environmental advocacy groups and individuals were provided with funding to facilitate their participation (Snider, 2004: 285, note 23).

• During the hearings, the government’s purported “culture of trust” is instead viewed, by the Concerned Walkerton Citizens as one of “regulatory chill”, and the government’s initiatives are characterized as “policy vacuums” (Hearings, 30 October: 28-29, cited in Snider (2004: 276)).

• Terence Corcoran, columnist in the Financial Post, acknowledged that the public’s verdict was the “Harris cutbacks and privatization” had been the cause of Walkerton, whilst he fumed that the real culprit should have been recognized as “gross inadequacies inherent in public sector ownership”.10

XV. Aftermath - Economic Impacts, Inspections and New Legislation:

• Economic Impacts: The Canadian Broadcasting Corporation (2004a) reported on the results of a 60-page study, released in November 2001, which “concluded that the Walkerton water tragedy cost at least $64.5 million and an estimated $155 million, if human suffering was factored in. Each household in the town of 5,000 spent about $4,000 on average as a result of the contamination, for a total of $6.9 million. The study weighed in the costs and benefits of providing safe drinking water. The study also concluded that real estate values in Walkerton fell a total of $1.1-million as a result of the contamination of the water supply. Costs for the town's businesses, for items such as bottled water or disinfecting and replacing equipment, are estimated at $651,422. Lost revenues from May 1, 2000, to April 30, 2001, were estimated at $2.7 million. The study estimates that it cost more than $9 million to fix the town's water system, while the Ontario government spent about $3.5 million on legal fees and another $1.5 million to supply clean water to institutions.”

• Inspections: Blitz inspections of water treatment plants, undertaken soon after Walkerton, revealed that “367 had “significant deficiencies”, inadequate sampling was found at 267, and the MoE issued 343 legally binding orders” (Hearings, 23 August: 113-144, cited in Snider (2004: 285, note 27)).

• New Legislation: The Nutrient Management Act, the Safe Drinking Water Act, and the Clean Water Act have all since been brought into effect in Ontario.

10 Snider (2004: 282) quoting from Terence Corcoran, “Walkerton Misrepresented”, Financial Post, 2001.

• Further Developments: Information about the continuing responses on the part of the government, to Justice Dennis O’Connor’s recommendations can be found on the website of the Ministry of the Environment: Government of Ontario, Ministry of the Environment, “Status of Part One Recommendations Report of the Walkerton Inquiry”, March 2007, <http://www.ene.gov.on.ca/envision/water/sdwa/status_part1.htm>; Government of Ontario, Ministry of the Environment, “Status of Part Two Recommendations Report of the Walkerton Inquiry”, May 2007, <http://www.ene.gov.on.ca/envision/water/sdwa/status_part2.htm>.

XVI. Criminal Proceedings:

• Charges Against the Koebel Brothers: The Ontario Provincial Police had conducted an extensive criminal investigation, and criminal charges were laid against Stan Koebel and Frank Koebel. The charges came after the public inquiry was done. The brothers were charged with public endangerment, fraud and breach of trust. (CBC News, 2004b). The brothers subsequently pled guilty to “committing a common nuisance11 by failing to discharge a legal duty in three specified ways (see just below), which thereby endangered the lives, safety, or health of the public” (R. v. Koebel and Koebel, at 2). The prosecution (the crown) had called “for a sentence near the maximum” for Stan, and “a conditional sentence or house arrest” for Frank (CBC News, 2004b). As Justice Bruce Durno relates, the Crown opposed the sentence for Stan Koebel “being served in the community”, and submitted that “it would not be inappropriate to permit Frank Koebel to serve the sentence in the community, provided that there are punitive restrictions on his liberty” (R. v. Koebel and Koebel, at 2-3). Counsel for both brothers had sought conditional discharges on their parts, which would leave them without criminal records and a period of probation (R. v. Koebel and Koebel, at 47).

• Endangerment of the Public: There were several aspects to the criminal offence of committing a common nuisance by failing to discharge a legal duty which resulted in the lives, safety or health of the public being endangered, in the case of the Koebel brothers. There are three ways in which their conduct fell below the standard of a reasonable person engaging in the activities in question: (1) “Disinfection of water was the most important step in any water treatment process… The first particular is that they operated Well 7 without a chlorinator. For 12 days, Walkerton was supplied with un-chlorinated

11 The offence is formally called common nuisance, and it is distinct from the common law (civil litigation) cause of action known as nuisance. The Criminal Code of Canada, R.S.C. 1985, c. C-46, section 180 provides as follows: 180. (1) Every one who commits a common nuisance and thereby (a) endangers the lives, safety or health of the public, or (b) causes physical injury to any person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. (2) For the purposes of this section, every one commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby (a) endangers the lives, safety, health, property or comfort of the public; or (b) obstructs the public in the exercise or enjoyment of any right that is common to all the subjects of Her Majesty in Canada.

water… There is no apparent explanation for operating Well number 7 without a chlorinator.” (R. v. Koebel and Koebel, at 22-23)

• (2) “The second particular involves the offenders’ failure to discharge their legal duty under the regulations… by failing to properly monitor, sample, and test the water in the water distribution system... Stan Koebel was responsible for having in place very important and basic precautions to protect the water supply and make it safe and failed to do so. The most glaring example is the insufficient chlorine residuals. They had to be properly maintained and measured. The serious health consequences were made plain to him over the years… As a result of the history of sloppy work, ignoring the safety of the water, Stan Koebel did not insist that his staff took proper chlorine residual measurements. For whatever reason, he did not make the residuals or the proper sampling a priority. Frank Koebel did not properly monitor during the time he was the operator-in-charge. In addition, he was responsible for much of the water sampling in Walkerton, including much of the mislabelling. His sampling was not done with any integrity. Nor was it done in a manner that was representative of the actual water conditions in the distribution system.” (R. v. Koebel and Koebel, at 23-24)

• (3) “The final particular is their failure to accurately record the required information in the logs or other record-keeping mechanisms, and more particularly, by inaccurately completing the Daily Operating Sheet for Well 7 for May 2000, knowing that it would be relied upon as if genuine. Both offenders were under a duty to keep accurate records including noting any departures from normal operating procedures. Presumably that would include operating a well without a chlorinator. Operators were told that they had to notify the Ministry if unchlorinated water was distributed. They not only failed to ensure that the records were accurate, they produced inaccurate records.” (R. v. Koebel and Koebel, at 25)

• Justice Bruce Durno (R. v. Koebel and Koebel, at 25) emphasized that “[t]he offenders were being sentenced for the offence of public nuisance, by endangering, creating a risk of harm to the public. They are not charged with an offence which involves harm or death to victims. Direct harm or death, while an element of some criminal offences, is not an element of this offence. It would be wrong and illegal for me to impose a sentence as though an element of the offence was the deaths and illnesses caused by the Walkerton tragedy.” Justice Bruce Durno emphasizes that to endanger the public means to “expose someone to danger, harm, or risk but does not connote actual injury or damage” (R. v. Koebel and Koebel, at 22).

XVII. Sentencing • Sentencing Considerations: Justice Bruce Durno “took more than two hours to read out

and explain his ruling” on Monday December 20, 2004 (CBC News 2004b). Justice Durno commented movingly on the 63 Victim Impact Statements filed with the court.12 Representatives of ten of the families had read their statements in court on November 30. The statements, in Justice Durno’s words, “graphically depict the enormity of the Walkerton water tragedy”, and indicate the extent of the pain and suffering experienced by the victims (R. v. Koebel and Koebel, at 26). The victims wrote of their continuing

12 Section 722 of the Criminal Code requires judges to consider Victim Impact Statements in the determination of sentences.

nightmares because of their health problems: living with reduced kidney function, enduring painful medical procedures, or having to take multiple medications daily for the rest of their lives. Others focused on the financial repercussions, and still others were disturbed by the “constant prying of the media”, wanting to be free of public scrutiny to get on with their lives. (R. v. Koebel and Koebel, at 44)

• Justice Durno also took note of the emotional toll on the offenders, highlighting the remorse and humiliation of the brothers, and the impact that the events, and especially their role in them, have taken on their health and their finances. In addition, the judge emphasized the willingness of them both to cooperate with the inquiry, which saved time and expense. He does remark (at 46) on how much better it would have been for the people of Walkerton had the candour come 90 days earlier. And the fact that both offenders pleaded guilty meant that there were significant savings to the public, from the avoidance of a preliminary inquiry and trial. Those proceedings would have taken up potentially another year and a half, not to mention still further time needed if there were appeals. And, as Justice Durno highlights, a trial would have kept up the media attention, making it even harder for the victims to have some closure on the public aspects of the tragedy. (R. v. Koebel and Koebel, at 44). Guilty pleas bring finality to the conviction stage of proceedings.

• Justice Durno focused on the need for denunciation, the communication of society’s condemnation of the offender’s conduct, as being especially important in the circumstances. Also crucially important were considerations of general deterrence.13 The sentence to be given each brother needed to “send a clear message to those in whom the public places their trust, that they must discharge their legal duties in a manner which protects the public” (R. v. Koebel and Koebel, at 32). Moreover, the message should be directed very broadly at all those who have comparable public duties, not just those who operate water systems.

• Sentencing proceedings focus on the gravity of the criminal conduct, the extent of injury caused and whether death results. In the agreed statement of facts can be found these words: “It therefore cannot be said that the criminal conduct of Stan Koebel and Frank Koebel, and more particularly their failure to properly monitor, sample and test the well water supplying the town of Walkerton, was, in law, a significant contributing cause of the deaths and injuries caused by the contamination of Walkerton’s municipal water supply.” (R. v. Koebel and Koebel, at 21) There were numerous causes of the water tragedy that were unrelated to either offender, and their criminal conduct was not a significant contributing cause of the actual harm that occurred (R. v. Koebel and Koebel, at 35). The deaths and injuries cannot be linked to the offenders directly, but they illustrate the extent to which the public was put at risk by their failure to discharge their legal duties (R. v. Koebel and Koebel, at 44).

13 To deter means generally, to discourage or prevent from acting by fear. Specifically, punishment is a deterrent to crime; deterrence works by using the prospect of legal sanctions (for example, fines or imprisonment) to discourage undesirable behaviour (such as crime or pollution). Specific Deterrence refers to the effect of punishment on the offender, discouraging the one punished from repeating the offence, or re-offending. General Deterrence refers to the effect of punishment of an individual on the general population; it is directed at others who will be discouraged from offending in the first place. 'General Deterrence' works by “making an example” of the offender.

• The judge stresses during sentencing that the conduct of Stan and Frank Koebel, in allowing a vulnerable water distribution system to continue operating, did contribute to a chain of events that left members of the public dead and seriously ill.

• Justice Bruce Durno emphasizes that the contents of the Report of the Walkerton Inquiry, although comprehensive, were “not part of the facts upon which the sentences are to be imposed” (R. v. Koebel and Koebel, at 21). Furthermore, the sentence given to the offenders should not reflect what could be imputed to them, after the fact (what was learned with the wisdom of hindsight). They are to be sentenced, the judge insists, “on the basis of their knowledge and their intentions in May of 2000” (R. v. Koebel and Koebel, at 34).

• Stan had an “unenviable track record of non-compliance with duties imposed on him” (R. v. Koebel and Koebel, at 43). Stan failed to put in place basic precautions to protect the water supply – ensuring adequate chlorine residuals, ensuring careful and representative sampling, monitoring the water quality, and keeping other public agencies properly informed. Furthermore, he failed to ensure, as manager, that employees (including his brother) understood the basic precautions necessary to protect the water supply (R. v. Koebel and Koebel, at 35). Frank, albeit to a lesser extent, also contributed to the deaths and injuries resulting from water contamination, especially while he was in charge.

• Both men were aware that bacteria in water could have bad consequences, the judge declaims, even if they were not aware that E. coli could cause death or serious harm. Their moral culpability, and particularly that of Stan, increased from the point at which there were indications that the water was contaminated, and when it was known that people were getting ill. When the crisis was in full force, Stan and Frank had definite obligations to provide accurate information to persons and agencies that were trying to determine what was causing the problems. The judge emphasized that even if unqualified to do the job properly, Stan was qualified to, and capable of, conveying complete answers and giving accurate information (R. v. Koebel and Koebel, at 39). He did neither when it was most needed for him to do so.

• The Sentences Given: Stan (then 51) received a one year prison sentence. Justice Durno rejected a conditional discharge and probation for him, and then reviewed the factors for a conditional sentence.14 There are three statutory prerequisites for a conditional sentence (as per s. 742.1 of the Criminal Code): (i) there is no minimum sentence; (ii) the fit sentence is less than two years; and permitting the offender to serve the sentence in the community would not endanger the community.

• Ultimately, Justice Durno concludes that “a conditional sentence in the circumstances of this case would be inconsistent with the purposes and principles of sentencing” (R. v. Koebel and Koebel, at 51).

• The reasons why Stan deserved imprisonment were articulated by Justice Durno thusly: “He breached the trust of the people. He put the lives, safety and health of the public at risk in general… [and crucially] [w]hen the crisis hit, he did not provide complete information. Later, he then gave less than candid information. He contributed at least in part, to the delay in issuing the Boil Water Advisory, which caused some undeterminable

14 See Figure 12, found in Section One, Part B (5), which contains a table detailing the various types of criminal sentences.

number of people to become ill. Finally, he tried to cover up his wrongdoing with an inaccurate document.” (R. v. Koebel and Koebel, at 51).

• Frank (then 46) received a conditional sentence, consisting of six months house arrest followed by three months of night curfew, for a total of nine months. Justice Durno rejected a probation and/ or fine as inappropriate.

• Frank’s practice of mislabeling samples defeated the purpose of the tests, and then hindered the quest to find the source of the problem. (R. v Koebel and Koebel, at 43). Frank had helped his brother try to cover up what was going on when the crisis occurred, but his actions did not contribute to the delay in issuing the Boil Water advisory. He was not the supervisor, and he was not the one who received the adverse sample reports. Moreover, Frank had not received the training information that his brother had. In Frank’s case, by contrast with that of Stan, a conditional sentence would not be inconsistent with the purposes and principles of sentencing. (R. v. Koebel and Koebel, at 54).

• For the first six months, Frank was only to be allowed to leave home in cases of medical or dental appointments or emergencies, to attend employment or for job interviews, and for limited Saturday shopping as well as Sunday church service and the like. This type of sentence is known as “house arrest”. For the remaining three months, he would be required to be at home from 10 pm until 6 am (under curfew), with the exception of medical or dental emergencies or for work. Frank was also required to do 200 hours of community service.

XVIII. Walkerton Case Illustrated Figure 52 shows that the “Walkerton Case” involved three different legal approaches, or categories of law. The proceedings against the Koebel brothers exemplify criminal law, a crucial area of public law, while the class action proceedings instigated by the representative plaintiffs, in Smith v. Brockton, are an example of the workings of common law/ private litigation (i.e., private law). Figure 52 also shows that another area of public law, regulatory law, was at the core of the issues that arose in the Walkerton case. Examination of the regulatory framework for drinking water was a crucial focus for the Walkerton Inquiry. Figure 52 illustrates the significant outcomes for each category of law – the plea bargain in the combined criminal case of R. v. Koebel and Koebel, the three new regulatory laws passed, and the settlement agreement for the class action litigation, based on common law causes of action. See Figure 51, found in the case summary for Smith v. Brockton, for an illustration of the parties and the crucial components of the class action settlement agreement (incorporating the Ontario government’s Walkerton Compensation Plan). NOTE: See also the Case Summary of Smith v Brockton. ACKNOWLEDGEMENTS: Chronology Adapted from: The Canadian Press, “Chronology of Events Surrounding the Outbreak” <http://www.canoe.ca/EcoliTragedy/chronology.html> CTV News, “Walkerton Chronology”

<http://www.ctv.ca/servlet/ArticleNews/print/CTVNews/20041220/walkerton_tragedy-Chron...> R. v. Stan Koebel and Frank Koebel. Court File No.: 04-584 (20041220); 2004 CanLII 48879 (ON S.C.) (R. v. Koebel and Koebel) <http://www.canlii.org/en/on/onsc/doc/2004/2004canlii48879/2004canlii48879.html> REFERENCES: Abouchar, Juli. 2003. “Walkerton: Its Impact on Groundwater Protection in Canada”, Environmental Law Reporter, ELR, 7-2003, 10514-10521. Canadian Broadcasting Corporation [CBC] News Online. 2004a. “Canada’s Worst Ever E. coli Contamination”. <http://canadaonline.about.com/gi/dynamic/offsite.htm?zi=1/XJ&sdn=canadaonline&zu=http%3A%2F%2Fwww.cbc.ca%2Fnews%2Fbackground%2Fwalkerton%2F> Canadian Broadcasting Corporation [CBC] News. 2004b. “Stan Koebel Gets 1 Year in Jail, Frank 9 Months House Arrest”. Tuesday December 21, 2004. <http://www.cbc.ca/canada/story/2004/12/20/koebels-sentenced041220.html#skip300x250> Canadian Union of Public Employees [CUPE]. 2002. “Walkerton Inquiry Report: Part 1 - Provincial Government Cutbacks the Main Factor in Tragedy, But Recommendations to Affect Water System Operators”. Canadian Union of Public Employees (CUPE) website: <http://cupe.ca/environment/BE4647> Environmental Commissioner of Ontario (ECO). 1995. “Drinking Water Quality and the Environmental Bill of Rights”. Econote 028, November 1995. <http://www.eco.on.ca/english/publicat/enote28.pdf> Hrudey, Steven. No Date. Drinking Water Disease Outbreaks: Legal Perspectives of Problems and Resolutions. Presentation hosted by the Canadian Water Network <http://www.eab.gov.ab.ca/dec/Hrudey%20Drinking%20Water%20Disease%20Outbreaks.pdf > Hrudey, S.E., P.M. Huck, R.W. Gillham and E.J. Hrudey. 2003. “A Fatal Waterborne Disease Epidemic in Walkerton, Ontario: Comparison with Other Waterborne Outbreaks in the Developed World”. Water Science and Technology, Volume 47, Number 3, 7-14. Government of Ontario, Ministry of the Environment [MoE]. 2007a. “Status of Part One Recommendations Report of the Walkerton Inquiry”, March 2007. <http://www.ene.gov.on.ca/envision/water/sdwa/status_part1.htm> Government of Ontario, Ministry of the Environment [MoE]. 2007b. “Status of Part Two Recommendations Report of the Walkerton Inquiry”, May 2007. <http://www.ene.gov.on.ca/envision/water/sdwa/status_part2.htm>

Krajnc, Anita. 2000. “Whither Ontario’s Environment? Neo-Conservatism and the Decline of the Environment Ministry”. Canadian Public Policy, Volume 16(1), 111-127. O’Connor, Dennis R. [The Honorable Dennis R. O’Connor]. 2002a. Part One Report of the Walkerton Inquiry, The Events of May 2000 And Related Issues. Queen’s Printer for Ontario, 2002. <http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/walkerton/> O’Connor, Dennis R. [The Honorable Dennis R. O’Connor]. 2002b. Part Two Report of the Walkerton Inquiry: A Strategy for Safe Drinking Water. Queen’s Printer for Ontario, 2002. <http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/walkerton/> Snider, Laureen. 2004. “Resisting Neo-Liberalism: The Poisoned Water Disaster in Walkerton, Ontario”. Social and Legal Studies, Volume 13(2), 265-289. Spurgeon, David. 2000. “Budget Cuts May Have Led to E coli Outbreak”. British Medical Journal, Volume 320, 1625.