Guidelines to Statutory Order on the Licensing of Waste Water Discharges 6. Revocation of the duty to connect to public waste water systems6.1 Background 6.1 Background Before the Environmental Appeal Board decision of 12 August 1994, section 28(4) of the Environmental Protection Act was for administrative purposes interpreted to the effect that a property that was connected to a public collecting system was subject to an ultimate right and duty to connect to the system. In its decision of 12 August 1994, the Environmental Appeal Board found, however, that according to the prima facie meaning of section 28(4) of the Environmental Protection Act, landowners have not only a duty, but also a right to connect to a public waste water system. However, the provision does not establish which properties are to be subject to the right and duty to connect. This is determined by the local council when it identifies sewage catchment areas in connection with municipal waste water planning. Against this background, the Environmental Appeal Board found that the final decision as to whether the owner of a property already connected to a public waste water system may be granted exemption from the duty to connect, and whether this will require formal amendment of the waste water plan also lies with the local council as part of its administration of the waste water plan. The issue of exemption from the duty to connect was included in the terms of reference of the Waste Water Committee ("Spildevandsudvalget") that was established to follow up on the Waste Water Report 1995 issued by the Environmental Protection Agency. The Waste Water Committee found it appropriate to maintain the Environmental Appeal Board’s construction of section 28(4) of the Environmental Protection Act. However, the Committee recommended that rules should be fixed for withdrawal from the common public waste water service partnership - including the necessary measures to be taken before a decision to revoke the duty to connect is made. The Committee also recommended that rules be set out for the financial consequences of such withdrawal. With Act No. 325 of 14 May 1997 to amend the Environmental Protection Act and in accordance with the Waste Water Committee’s recommendation, a provision was inserted in section 29 of the said Act to empower the Minster of Environment and Energy to lay down detailed rules for full or partial revocation of the right and duty to connect to public waste water systems. In addition, an amendment of the Act on payment rules for waste water installations etc. was adopted to clarify the financial consequences of withdrawing from a common public waste water service partnership. Rules governing withdrawal from the common public waste water service partnership Section 12 of the Statutory Order lays down rules for withdrawing from the common public waste water service partnership. Withdrawal takes place according to the procedure recommended by the Waste Water Committee for full or partial termination of membership of the common public waste water service partnership. Thus, permission for full or partial withdrawal from the common public waste water service partnership may be granted, provided that due regard is paid to the following main considerations: the aquatic environment, the technical requirements and economy of the waste water service. In addition, withdrawal from the common public waste water service partnership is subject to compliance with the requirements reviewed in section 6.3 below. 6.2 Connections that may be terminated Reasons justifying termination Neither the Environmental Protection Act nor the Statutory Order contains restrictions with respect to the types of property that may terminate their membership of the common public waste water service partnership. Thus, both enterprises and private households may withdraw subject to the conditions stipulated. Similarly, it is possible to withdraw in full or in part – i.e. with regard to certain types of waste water only. The Environmental Protection Agency’s position on this issue is that permission for termination should only be granted in cases where withdrawal is associated with environmental and socio-economic advantages. For certain enterprises discharging waste water with a high content of pollutants it may be beneficial to both the enterprise and the waste water service if the level of pollutants can be reduced before the waste water leaves the enterprise. In this way, the process of substance reduction will, where possible, be integrated into the enterprise’s handling of residual products and into its overall environmental management system. In such situations, it may be an environmentally and socio-economically sound solution to let the enterprise withdraw from the waste water service partnership with regard to process waste water, provided it can obtain a discharge licence. For private households, withdrawal will typically be relevant with regard to surface run-off. 6.3 Conditions for withdrawal 6.3.1 Conditions related to municipal waste water planning Compliance with the municipal waste water plan In order to facilitate municipal authorities’ technical and financial planning in the field of waste water management, section 32(1)(ii) of the Environmental Protection Act requires local authorities to identify in future municipal plans any areas where it will be advantageous from an environmental and financial point of view to let the landowners themselves be responsible for handling waste water disposal - and where the local council is consequently prepared to revoke the landowners’ right and duty to connect to the public waste water system, in full or in part. In other words, disconnection from the public waste water system is only possible if it is in accordance with municipal waste water planning. The requirement set out in section 12(1)(i) of the Statutory Order for compliance with municipal waste water planning should also be viewed against the background that possible exemption from the duty to connect may result in a reorganisation of the public waste water management system from a centrally managed service to a hybrid solution, which would involve establishing individual discharge facilities and/or infiltration plants for some industries and private households. Municipal authorities must allow for this in their waste water planning, in order to prevent withdrawal from the public waste water service partnership leading to environmentally less acceptable solutions, cf. the remarks below on the requirement for licensing of alternative discharge methods and compliance with the requirements stipulated in the Aquatic Environment Plan. 6.3.2 Agreement between the local authority and the landowner The local authority and the landowner must agree on withdrawal A property within a sewage catchment area to whose site boundary the local authority has laid a service sewer and ordered the owner to establish connection to the public collecting system is, basically, subject to both a right and a duty to discharge the waste water to which the connection licence applies. In view of the heavy costs that may be imposed on withdrawing landowners in order to safeguard the economy and adequate functioning of the waste water service, it has been considered appropriate to stipulate that withdrawal from the waste water service partnership is subject to the mutual consent of the local authority and the landowner. 6.4 Effect on the economy of the waste water service Withdrawal must not significantly impact the economy of the waste water service The public waste water service is a joint, 100% user-financed scheme. A withdrawal from the partnership may have financial consequences, not only to the withdrawing user, but to the other users as well. From a socio-economic point of view, it is desirable to keep the cost of waste water treatment as low as possible. As it is always dependent upon the withdrawing user’s share in the overall costs, the waste water service may both benefit and suffer financially when connected properties are granted permission to withdraw from the partnership. However, it is important that the operation of the waste water service continues to be financially viable, including that its economy does not deteriorate to a degree where either the costs to be shared among the remaining users will be prohibitive, or where withdrawal takes place to the detriment of the necessary rehabilitation and replacement of the pipes and waste water treatment plants operated by the service. 6.5 Effect on the technical performance of the waste water service The waste water service must be able to operate in a technically appropriate manner Modern waste water treatment plants are generally designed and equipped with the necessary biological and technical features for treating inflowing waste water from the connected industries etc. Permitting certain industries to terminate their connection therefore involves a risk that the waste water treatment plant may subsequently find it difficult to comply with current emission standards. Before any agreement is made for the withdrawal of, say, an enterprise, the positive and negative effects of the withdrawal on the overall waste water management process will have to be weighed up, in order to ensure that the total volume of waste water will not be treated less effectively than if withdrawal were to be refused, cf. section 12(2)(iii) of the Statutory Order, and that the current emission standards can still be met, cf. section 12(2)(ii) of the Statutory Order. 6.6 Licensing of alternative disposal Withdrawal is subject to a licence for alternative disposal Under section 12(2) of the Statutory Order, landowners wanting to withdraw from the common public waste water service partnership must first obtain a licence for alternative disposal. Thus, enterprises wanting to terminate their membership of the common public waste water service partnership must typically obtain a licence from the regional council for direct discharge into the aquatic environment in accordance with the objectives set for the area concerned, whereas withdrawing home owners must obtain a licence for alternative disposal of waste water or surface run-off. 6.6.1 Effect on the objectives of the regional plan The regional plan’s objectives for ground water resources as well as for watercourses, lakes and the sea must be respected Before granting a licence for alternative waste water disposal, the local authority must ensure that such licensing does not conflict with the objectives set out in the regional plan for water bodies and ground water resources under regional administration, and that the licensing of alternative disposal will not prevent achievement of the objectives set in the regional plan for a particular water body, cf. section 12(2)(i), of the Statutory Order. 6.7 Effect on the requirements established in the Aquatic Environment Plan The requirements established in the Aquatic Environment Plan must not be disregarded or circumvented In deciding whether to grant a licence for alternative disposal, the local council must ensure compliance with the requirements in the Aquatic Environment Plan regarding emission limit values for certain substances discharged from public waste water treatment plants, cf. Part 8 of the Statutory Order. According to section 12(2)(ii) of the Statutory Order, the emission standards for waste water treatment plants defined in Part 8 are to be met, notwithstanding any reduction in the approved capacity. This means that regardless of whether the capacity of the waste water treatment plant falls below one of the limits defined in section 18, the emission standards that applied before permission to withdraw was granted still apply. Furthermore, enterprise owners whose facility is connected to a waste water treatment plant operating under the emission standards set out in Part 9, but who want to withdraw from the common public waste water service partnership will be subject to the same emission standards after disconnection as those applying to the waste water treatment plant, cf. section 12(2)(ii) and (iii) of the Statutory Order. It must furthermore be ensured that the combined discharge of pollutants from the enterprise(s) to be disconnected and from the waste water treatment plant will not exceed the total load discharged from the waste water treatment plant before the enterprise(s) are disconnected. 6.8 Right of appeal Under the general rules set out in the Environmental Protection Act, local council decisions on permission to withdraw from the common public waste water service partnership pursuant to section 12 of the Statutory Order can be brought before the Environmental Protection Agency, cf. section 91 of the Environmental Protection Act. Similarly, appeals can be lodged in accordance with the applicable rules against the licences for alternative waste water disposal obtained in connection with withdrawal from the partnership. The Environmental Protection Agency’s decisions of appeals brought against local council decisions may be referred to the Environmental Appeal Board, cf. section 103 of the Environmental Protection Act, subject to certain conditions.
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