Reuse of waste water is resource-efficient and helps achieve a sustainable society and fulfil international environmental objectives in Agenda 2030, regional objectives as part of European cooperation and Swedish environmental objectives. However, technical developments in this field have advanced further than legal ones. That means that questions of how reuse of waste water must be dealt with within the framework of current legislation often arise. There are no legal obstacles to reusing waste water, but there are a number of legal aspects that must be dealt with when waste water is reused.
Interest in reusing waste water has grown in recent times and more and more projects have been started up. Those projects mainly involve reuse of what is referred to as “grey water” (bath, shower and washing water). For example, projects have been started up in which grey water is circulated within a property and reused for flushing toilets and showering.
In April, Lindahl published an article that focused on the legal regulations from the point of view of the water and drainage principal.
In this follow-up article, we take a closer look at the environmental law issues that arise for a property owner who wishes to reuse waste water within a property. We will also take a look at food legislation, since it is relevant to projects in which waste water is to be reused for production of drinking water. To conclude our series of articles, we will return after the summer with an article focusing on the Planning and Building Act.
PROVISIONS OF THE ENVIRONMENTAL CODE
The general rules of consideration and responsibility for control
Several aspects of environmental law arise in the case of reuse of waste water which are primarily regulated in miljöbalken (”MB”) [the Environmental Code] and regulations issued pursuant to the Code. The general rules of consideration contained in Chapter 2 MB apply to all parties that engage in or intend to engage in an activity or take an action. That means that the rules of consideration also apply to an activity for which there is no notification or permit requirement. The rules of consideration are aimed at protecting human health and the environment from damage and nuisance. In order to prevent damage or nuisance from occurring, the rules of consideration establish requirements that include a requirement for the operator to possess the knowledge required to carry out the activity or the action without any damage or nuisance occurring. Furthermore, the operator must take the necessary precautions and adopt protective measures to guard against, prevent or counteract damage and nuisance. The general rules of consideration must nevertheless be taken into account if it is reasonable, which means that the costs must be reasonable in relation to the environmental and health benefits resulting from the precautionary measures and protective measures.
With regard to a device that recirculates waste water within a property, the rules of consideration require the property owner to have sufficient knowledge to set up, use and otherwise handle the device. An expert must be engaged if the property owner has no such knowledge itself. In the case of a device that purifies waste water to be used as drinking water, the rules of consideration require the operator to ensure that the quality of the drinking water complies with food legislation.
Waste water management
In addition to the rules of consideration, the Environmental Code establishes requirements for how waste water must be managed. At present, there is no specific regulation for devices that receive, purify and circulate waste water within an individual property. That means that legal issues that may arise with regard to devices for recirculating waste water must be dealt with on the basis of existing regulations for waste water devices. In accordance with Chapter 9, section 7 MB, waste water must be purified and dealt with in such a way that no harm to human health or the environment arises and appropriate waste water devices must be set up for this. Furthermore, discharge of waste water is regarded as an environmentally hazardous activity in accordance with Chapter 9, section 1 MB. That means that a device may be subject to a permit or notification requirement and a property owner must deal with that before the recirculating device is installed.
Is a permit or notification required for reuse of waste water?
The rules on permit and notification requirements for waste water appliances are contained in miljöprövningsförordningen (2013:251), (”MPF”) [the Ordinance on Environmental Impact Assessments] and förordning (1998:899) om miljöfarlig verksamhet och hälsoskydd, (”FMH”) [the Ordinance on environmentally hazardous activities and health protection]. A device that takes in waste water containing a quantity of pollutants equal to more than 200 but less than 2,000 person equivalents is subject to a notification requirement in accordance with Chapter 28, section 4 MPF, whereas a device that takes in a larger quantity of pollutants is subject to a permit requirement. However, the quantity of pollutants for a recirculating device in an individual property does not normally reach levels entailing a requirement for a permit or notification in accordance with the MPF. For smaller devices, a permit or notification requirement in accordance with the FMH must instead be observed.
A permit is required for the installation of a waste water device to which one or more water toilets are to be connected or if a water toilet is connected to an existing waste water device, see section 13(1) FMH. In accordance with section 13(2) FMH, a notification requirement applies to other waste water devices. A permit or notification must be applied for from the municipal committee with responsibility for health and the environment. A recirculating device falls under the category of other waste water devices and in principle is subject to a notification requirement. There is a permit requirement if a water toilet is to be connected to the device. However, devices intended to pipe waste water only to a public waste water facility are not subject to a notification requirement, see section 15 FMH.
Therefore, prior to a project in which reuse of waste water is planned, an investigation must be carried out as to whether the waste water from the property will only be piped to a public facility and whether the exemption from the notification requirement is applicable. Our assessment is that the exemption will not be applicable. This is because the reuse of the waste water means that the purpose cannot be considered to be merely to pipe the waste water to a public waste water facility. Another way of looking at it is that the waste water in the recirculating device is ultimately intended to be piped only to a public facility, even if it is recirculated in the property before that. Regardless of the approach, the purpose of the appliance should be to recirculate the water in the property and not merely pipe it to a public facility. A notification requirement therefore exists in accordance with the FMH for the entire device, including waste water pipes within the property to the device, and a notification must therefore be issued to the municipal committee.
In accordance with section 13(4) FMH, the municipal committee has the ability to issue instructions stating that a permit is required for setting up the device if such is necessary to protect human health and the environment. Since this is a municipal concern, the way in which recirculating devices are treated may therefore differ from one municipality to another.
Compliance with the provisions of the Environmental Code
In order to ensure compliance with the environmental rules, the supervisory authority has been granted the power to exercise supervision in accordance with the rules contained in Chapter 26 MB. The task of the supervisory authority is to ensure that the property owner complies with the environmental rules and, when exercising that supervision, the supervisory authority is able to issue orders and prohibitions in the event that an activity is carried out or an action is taken in breach of the rules.
If a property owner fails to comply with the notification requirement, the municipal committee, as the supervisory authority, is able to issue orders and prohibitions against the property owner. The supervisory rules are also applied in order to control the functioning of individual water and drainage facilities, as well as compliance with the rules of consideration. There is also what is referred to as a reversal of the burden of proof for the rules of consideration, which means that the property owner is required to demonstrate compliance with them.
The property owner’s obligation to comply with the rules of consideration is also clarified by the responsibility for control, which applies when carrying out the activity or the action in accordance with Chapter 26, section 19 MB. Responsibility for control means that the property owner must control and plan the activities in a way that prevents a nuisance to human health or the environment from occurring.
What applies when the recycled waste water is to be used in the production of drinking water?
If the recycled waste water is to be used as drinking water, the property owner must ensure compliance with the requirements for quality and control of drinking water. The primary regulations regarding the handling and quality of drinking water consist of the National Food Agency’s administrative provisions. According to the National Food Agency’s administrative provisions on drinking water (LIVSFS 2022:12), water consumed by humans is regarded as drinking water and is equated with food from the moment when it is taken into the facility whose purpose is to supply drinking water. The administrative provisions apply to all public and commercial activities as well as to other operators producing at least 10 m3 of drinking water per twenty-four hours or supplying at least 50 persons with drinking water. This means that, in principle, the legislation on drinking water must also be applied to a property owner’s recirculating devices from the moment when the water is taken into the device.
According to the administrative provisions, drinking water must be healthy and pure, which means that the water may not contain microorganisms, parasites or other substances in a quantity that poses a potential risk to human health. Also, the drinking water needs to fulfil certain limit values at the moment when the water comes out of the tap and is used for drinking water in the property. In order to ensure that the quality is maintained, requirements are imposed on sampling of the water and the facility is required to be equipped with certain warning systems regarding pH adjustments and disinfection. Furthermore, the property owner also needs to establish an investigation programme.
In addition to the requirements established for the quality of drinking water, the National Food Agency has drawn up regulations regarding registration and approval of food facilities (LIVSFS 2022:8) which apply, among other things, to facilities that are subject to the Agency’s regulations on drinking water. Such facilities require a written notification to the National Food Agency containing information on the operator (property owner) and the facility. That means that a property owner who operates a recirculating device that produces drinking water must report the drinking water production to the National Food Agency.
CONCLUDING COMMENTS
To sum up, several legal issues are highlighted in connection with reuse of waste water. The legal regulation does not prevent the reuse of waste water within a property, but the property owner needs to ensure that the use complies with current legal regulations. Since there are no specific regulations for reuse of waste water within a property, reuse is no easy matter. Technical development is at the forefront and will probably influence the development of the legal regulations in future.
Lindahl is monitoring developments with great interest and takes a positive view of the development towards a sustainable society and resource-efficient use of water. You are welcome to contact us if you have any questions concerning your business.
