Reuse of waste water is resource-efficient and contributes to a sustainable society and to fulfilment of international environmental objectives within Agenda 2030, as well as regional objectives within European cooperation and Swedish environmental objectives. However, technical developments in the area have advanced further than legal ones. This means that questions of how reuse of waste water should be dealt with within the framework of existing legal regulation often arise. Current regulation does not constitute any obstacle to reuse of waste water, but there are a number of legal aspects that operators need to take into account prior to reusing waste water.
Increasing numbers of operators, both municipalities and individual property owners, have recently started projects to reuse waste water, primarily so-called greywater (bath, shower and washing water). The purpose for the reuse comprises production of drinking water, as well as other usage that does not require water of drinking water quality (so-called technical use). To illustrate the legal regulation that needs to be taken into account in connection with reuse of waste water, we will use a series of articles, in three parts, to identify and briefly present the central legal issues that operators need to consider.
In this first article, we illustrate the environmental law regulation based on the perspective of the bodies with principal responsibility for water and sewage. In the next article, we will focus on issues of particular significance for individual property owners that want to reuse waste water. In the concluding article, we are planning to look at technical issues relating to planning and construction that are linked to the Planning and Building Act when establishing equipment to recycle waste water.
PROVISIONS OF THE ENVIRONMENTAL CODE
According to chapter 9, section 2 of the Environmental Code (”MB”), waste water includes greywater and blackwater (toilet water). There is no legal obstacle to reusing blackwater, but it is simpler to reuse greywater as it has a lower level of contamination and thus does not require as extensive purification processes. If greywater is to be reused separately, it needs to be separated from the blackwater by using two separate drainpipes; one for greywater and one for blackwater.
The general rules of consideration
The general rules of consideration are to be found in chapter 2 of MB, and apply for all parties that engage in or intend to engage in an activity or take an action. The rules are applicable, regardless of whether the activity or the action requires authorisation or notification according to MB. The rules of consideration apply for the entire process in connection with reuse of waste water, i.e. from when the water is collected until its final use. It is the operator, i.e. the entity that engages in the activity or takes an action, which has to demonstrate compliance with the rules of consideration, in other words a reverse burden of proof prevails.
The requirements set by the rules of consideration include the operator having to have the knowledge required to ensure that the activity or action does not cause damage or inconvenience to human health or the environment. The operator must also take safety measures and precautions, as well as observe the restrictions required to avoid, prevent, or counteract such damage/inconvenience. However, the rules of consideration shall be applied to the extent it is reasonable, i.e, the costs for the measures shall be placed in relation to the environmental benefit they provide. In addition, the operator has a personal responsibility for control with respect to planning and monitoring the activity, with the aim of counteracting and preventing such damage/inconvenience. The supervisory authorities have the capacity to impose injunctions and prohibitions on an operator that does not comply with the rules of consideration.
Specific regulation for handling waste water
Besides the rules of consideration, the operator needs to comply with the legal regulation concerning handling of waste water. According to chapter 9, section 7 of MB, waste water shall be diverted and purified, or dealt with in some other way, so that damage or inconvenience for human health or the environment does not arise. Appropriate sewage equipment and other facilities shall be arranged for this. The government may stipulate that it shall be forbidden to set up or change such sewage equipment or other facilities without authorisation or notification. According to chapter 9, section 6 of MB, the government may also specify that it shall be forbidden to discharge waste water into land, a body of water or groundwater without authorisation or notification. Pursuant to these provisions, the government has adopted the Environmental Impact Assessment Regulation (2013:251), (”MPF”), and the Environmentally Hazardous Activities Regulation (1998:899), (”FMH”).
Section 12 of FMH stipulates a prohibition on discharging waste water that has not undergone a longer purification process than that for sludge separation. The prohibition does not apply if it is obvious that such a discharge cannot constitute any inconvenience for human health or the environment. Appropriate arrangements for reuse of waste water therefore need to be put in place in order to divert and purify, or collect the water before it can be reused. As a minimum, the waste water must undergo sludge separation before it is discharged. Those who process waste water so that it can be used as a resource thus need to consider whether the arrangement is, respectively, licensable or notifiable according to MPF or FMH. According to chapter 28 of MPF, a licence is required for
- waste water treatment plants covered by the Public Water Services Act (2006:412) (”LAV”) and which handle a pollutant load equivalent to 2,000 person equivalents, (”p.e.”), or more;
- other waste water treatment plants that have a connection of at least 2,000 persons; and
- waste water treatment plants that receive waste water from one or a number of industries. Waste water treatment plants that receive a pollutant load that amounts to more than 200, but less than 2,000 p.e. instead require notification.
If waste water is purified in a waste water treatment plant with an existing licence, the operator needs to assess whether the purification of waste water for reuse is accommodated within the existing licence or notification with associated conditions. The conditions usually allow discharge to recipients such as water courses, the sea or a lake, but when waste water is reused, not all waste water is discharged into the recipient.
If waste water is to be used for drinking water production, it can moreover mean that the processes in the treatment plant need to be changed for the water to have the quality it needs to have before it can enter the drinking water plant. Diversion of purified waste water for reuse, and changes to the processes in the treatment plant will mean that the operator needs to apply for a licence or notify the changes. For licensable waste water treatment plants, a permit is required for a change that potentially entails significant inconvenience arising for human health or the environment. If such an inconvenience is not expected to arise, the change shall instead be notified. For a notifiable plant, a notification shall be made for changes that are of significance from a disruption point of view based on a health- and environmental consideration.
Use of purified or processed waste water
Once the waste water has been purified so that damage or inconvenience to human health or the environment does not arise, the water no longer constitutes waste water according to MB. This means that the use of the purified water for production of drinking water or technical use as a starting point does not require a licence or notification according to the Environmental Code. The rules of consideration are still applicable and the supply of water can be subject to supervision according to the Environmental Code.
However, depending on area of application for the purified waste water, the handling can be subject to other legal regulation. For example, water that is to be used for production of drinking water is regarded as a foodstuff once it is brought into the drinking water plant. This means that the food regulation becomes applicable and that the regulation's requirements for the handling, as well as the quality, of the drinking water, shall be followed.
Where greywater that constitutes waste water, and that has thus not been purified so that it ceases to constitute waste water, is used for technical purposes, the use will be more problematic from a legal perspective, even though a licence or notification is not needed according to MB. The operation is regarded as environmentally hazardous, and the supervisory authority will have more reason to impose prohibitions and injunctions against the operation when it concerns technical use of waste water. However, pursuant to chapter 9, section 6b of MB, the operator can apply for a so-called voluntary licence, despite it not being needed according to the Environmental Code. This means that the operator obtains a licence for its operation and enjoys the security that it entails in relation to the supervisory authority. A licence can namely only be changed or terminated by the supervisory authority according to specific conditions. Further, the injunctions or prohibitions cannot be imposed if the operator conducts its operation in accordance with a valid licence.
EU LAW REGULATION
The EU's Waste Water Directive (91/271/EEC) regulates collection, handling and treatment of waste water from urban areas, as well as purification and discharge of waste water from certain industrial sectors. The Directive has been implemented in Swedish law. During 2022, the EU produced a proposal for a new Waste Water Directive, (COM (2022) 541), which aims to extend the current Waste Water Directive's area of application, as well as set more and stricter requirements on purification of waste water. If the proposed directive is adopted in its current form, it is expected to affect operators that purify waste water, but it does not entail any change when it comes to recycling of waste water. Lindahl published an article in December 2022 on the proposed new Waste Water Directive.
The EU's regulation on the hygiene of foodstuffs, ((EU) 852/2004), is applicable to water used in production of plant products. The regulation comprises Swedish law, even though it has not been implemented in Swedish law yet and sets requirements that the water must be sufficiently clean that infections are not spread through irrigation. An operator that reuses waste water for irrigation needs to ensure that the regulation's requirements are observed. However, the requirements placed on recycled water used for irrigation within agriculture will be changed as a result of the EU's regulation on reuse of water (2020/741) that enters into force on 26 June 2023. The regulation concerns reuse of purified waste water from urban areas for irrigation of agriculture. Among other things, the regulation establishes minimum requirements for the recycled water's quality and states that production and supply of recycled water for irrigation within agriculture shall be subject to a licence. The end-user is also covered by the licensing obligation, which means that an operator that produces, supplies or uses purified waste water for agricultural irrigation will need a licence for its operation. The regulation is expected to be implemented in Swedish law, but applies as Swedish law without such implementation.
ENSURING THE QUALITY OF GREYWATER
An important question in reuse of greywater is how the quality, i.e. the degree of contamination, of the waste water that is diverted from individual properties can be guaranteed in connection with use for drinking water production or technical use that requires a certain water quality. Awareness concerning greywater's quality when it arrives at the purification plant is low and varies, dependent on what the individual property owners have added to the waste water. This differs from when untreated water from water sources is used, where the operator usually has good knowledge of the quality of the untreated water and which purification processes need to be implemented to enable the water to be used for drinking water production or technical use. As waste water does not constitute a water source, it is not possible to place requirements on the water's quality by establishing a water protection area and imposing regulations concerning the property owners' use of the properties.
However, the water and sewage company is able to place requirements on property owners that are connected to a public water and sewage system within the framework of LAV. According to section 21 of the Public Water Services Act (LAV), a property owner has an obligation to not use the public water supply and sewage system in such a way that damage or inconvenience can occur to the pipe network within the plant, as well as for the water and sewage company or anyone else. Section 23 of LAV also gives the municipality the possibility of imposing regulations on how the water and sewage system may be used, and thus placing requirements on the property owner. However, the property owner's obligations do not mean that the property owner is prevented from supplying anything hazardous to the plant and it is difficult to establish which property owner has supplied a hazardous substance. The waste water's degree of contamination thus needs to be checked before it enters the sewage works, even though regulations have been imposed. If the property owner acts in contravention of LAV, the municipality's regulations or the rules of consideration, the water and sewage company can demand that the property owner rectifies what has been disrupted or seek damages according to section 46 of LAV. As a final means, the municipal environmental supervisory authority can impose injunctions and prohibitions on the individual property owner pursuant to the Environmental Code.
To sum up, several legal issues are highlighted in connection with reuse of waste water. What makes the issue particularly complicated is that the legal regulation is not adapted for reuse of waste water. An operator that wants to reuse waste water needs to ensure that the use relates to applicable legal regulation, which is not always entirely simple. The technical development is at the forefront, and will probably influence the development of the legal regulation going forward.
If you are planning to reuse waste water in your operation, we can assist you with legal advice with the aim of ensuring that the project is implemented in accordance with existing licences/notifications and current legal regulation.
Lindahl is monitoring developments with great interest and takes a positive view of the development towards a sustainable society and a resource-efficient use of water. If you have any questions about your operation, you are welcome to contact us.