Guidelines to Statutory Order on the Licensing of Waste Water Discharges

11. Disposal of waste water from dispersed settlements

11.1 Background  
11.2 Definition of ‘dispersed settlements’
11.3 Requirements regarding level of treatment to be stipulated in discharge licences or enforcement notices  
11.4  Waste water systems that meet the criteria of the four classes of treatment 
11.5 Criterion for issuing enforcement notices for improved waste water treatment
11.5.1 Specific requirements for documentation in connection with enforcement notices
11.6 Supervision  
11.7 Right of appeal etc.

11.1 Background

Part 11 of the Statutory Order is incorporated in the administrative follow-up on Act No. 325 of 14 May 1997 to amend the Environmental Protection Act and the Act on payment rules for waste water installations etc. (Waste water treatment in rural areas etc.).

The prime objective of Act No. 325 of 14 May 1997 is to strengthen efforts to improve the treatment of waste water from properties situated in rural areas, and thereby promote achievement of the quality objectives set in the regional plans for watercourses and lakes.

Such efforts are targeted, more particularly, at non-sewered properties representing a waste water load of less than 30 p.e. and located outside municipal sewage catchment areas.

To harmonise these efforts with the identification in regional and waste water plans of areas subject to requirements regarding level of treatment, and to simplify the procedures for issuing discharge licences under section 28 of the Environmental Protection Act and enforcement notices under section 30 of the said Act for improved treatment of waste water from dispersed settlements, Part 11 of the Statutory Order establishes rules for the level of treatment to be stipulated in licences or enforcement notices and for the documentation required in connection with enforcement notices.

It should be emphasised that Part 11 of the Statutory Order does not imply that effluents other than those specified therein are not subject to regulatory requirements, where needed. Such effluents continue to be subject to the ordinary provisions of the Environmental Protection Act and of the Statutory Order.

11.2 Definition of ‘dispersed settlements’

For the purposes of this Statutory Order, ‘discharges from dispersed settlements’ means individual or collective discharges from properties with a total waste water load of 30 p.e. or less, cf. section 25 of the Statutory Order.

Enterprises approved under Part 5 of the Environmental Protection Act are not covered by Part 11 of the Statutory Order, with the exception of enterprises discharging only domestic waste water and surface run-off representing a total waste water load of 30 p.e. or less, cf. section 25(3) of the Statutory Order.

In contrast, Part 11 of the Statutory Order applies to discharges of waste water from enterprises not subject to approval, provided that the total volume discharged corresponds to a total waste water load of 30 p.e. or less, and provided that the contents of the effluent can be expressed in p.e. Moreover, the waste water in such effluents must not contain substances other than those normally found in domestic waste water, nor have a significantly different composition.

Thus, minor enterprises, such as bakeries, offices, or the like, discharging only sanitary waste water or waste water whose content of pollutants may be expressed in p.e. are subject to the provisions of Part 11 of the Statutory Order.

Other properties subject to the provisions of Part 11 include agricultural properties discharging domestic waste water from the farm house exclusively and commercial enterprises, such as machine pools, whose only discharge of domestic waste water comes from a residential building located on the site.

Thus, Part 11 of the Statutory Order does not govern discharges of process waste water, e.g. effluent from washing/cleaning plants at machine pools, which contains only negligible amounts of aerobic organic substances, NH₃/NH₄-N or phosphorus, since this type of waste water is not encompassed by section 25(2) or (3) of the Statutory Order.

11.3 Requirements regarding level of treatment to be stipulated in discharge licences or enforcement notices

Efforts to improve conditions of waste water discharge from properties in rural areas are organised into the following three stages:

Stage one is regional planning. The regional plan or an addendum to the plan must identify the subareas in which the treatment of waste water from properties located in rural areas must be improved in order to achieve the quality targets fixed in the regional plan for watercourses, lakes and coastal waters. In this stage, the regional council, in cooperation with the local authorities of the region, establishes targets for each of the region’s receiving water bodies, either in an addendum to the regional plan or in connection with the next revision of the regional plans in 2001. In the plan or the addendum, the regional council must identify the sensitive watercourses and lakes of the region and fix individual max. permissible pollution levels on the basis of existing knowledge about the general state of pollution of the waters and of the pollution load to which each of them is subjected.

In this context, the following waters are defined as ‘sensitive’:

	Water bodies, especially watercourses or lakes, for which the quality objectives set in the regional plan have not been fulfilled
	Water bodies whose poor water quality is due to a substantial degree (though not exclusively) to discharges from single properties or properties located in dispersed settlements.

Since the regional councils’ identification of sensitive waters will form the basis of future waste water plans and subsequent enforcement notices, the necessary documentation must be obtained by taking measurements in watercourses and lakes. Without this documentation, it would be difficult for the local authorities to follow up on enforcement notices related to specific discharges and to check their implementation.

In connection with the publication of a revised regional plan or an addendum to the plan that will affect waste water discharge in rural areas, the local council must, within 18 months of the adoption of the regional plan, complete a revision of the municipal waste water plan, cf. section 8 of the Statutory Order.

In the second stage, the local authority must identify the areas in which there is a need for improved waste water treatment. Environmentally appropriate minimum measures of percolation and/or treatment in terms of class of treatment must be indicated for each catchment area. In determining the treatment measures to be implemented in the catchment areas, the local authorities must respect the regional plan’s identification of sensitive waters.

With regard to areas designated for percolation, it may also be appropriate to specify a class of treatment to which the waste water must be processed if, contrary to expectations, it turns out that the area is not suitable for percolation.

Thus, the local council must base its waste water planning on the regional plan or the addendum to the plan to determine the combination of connection to sewers, percolation and local treatment, etc. to be applied to discharges from dispersed settlements in rural areas.

Stage three is the actual implementation of the waste water plans.

When issuing licences under sections 19 and 28 of the Environmental Protection Act or enforcement notices under section 30 of the said Act for improved treatment of waste water discharges from properties located in rural areas outside the municipal sewage catchment areas, cf. section 26 of the Statutory Order, the local authority must stipulate compliance with the requirements regarding level of treatment that have been fixed in the waste water plan for such areas.

Pursuant to section 26 of the Statutory Order, the level of treatment to be fixed by the local council in such cases must, as a minimum, be equal to that established in the waste water plan. According to section 26(3) of the Statutory Order, the level of treatment is to be fixed with reference to the four classes of treatment defined in Schedule 2 to the Statutory Order.

The four classes of treatment are defined as follows in Schedule 2 to the Statutory Order:

O: Reduction of organic substances, P: Reduction of total phosphorus, and SO: More stringent requirements for reduction of organic substances and nitrification.

Stipulating a class (degree) of treatment for small effluents instead of requirements with regard to the substance concentration of the treated waste water (emission limit values) makes it possible to include facilities discharging only part of the waste water generated. Such facilities may include arrangements for collecting all black waste water, or part of the black waste water after separation, or arrangements for partial percolation, etc.

11.4 Waste water systems that meet the criteria of the four classes of treatment

The Environmental Protection Agency has established guidelines and administrative rules for a number of waste water systems that meet the criteria of the four classes of treatment.

They include guidelines on how to design infiltration plants, small biological sand filtration systems and reed-bed plants.

In addition, the Environmental Protection Agency has issued a Statutory Order and Guidelines on the design and type approval of small waste water treatment installations (Statutory Order No. 500 of 21 June 1999 on type approval scheme for small waste water plants).

For the purpose of licences issued under section 28(2) of the Environmental Protection Act and enforcement notices issued under section 30 on improved waste water treatment for properties subject to section 26 of the Statutory Order, such waste water systems meet the criteria of the following classes of treatment:

	Reed-bed plants: Class O
	Biological sand filtration systems: Class O and Class SO
	Type-approved small biological treatment plants: Comply with the requirements defined for the class(es) in which the plant has been approved (O, OP, SO, SOP)
	Infiltration plants: All classes

Alternative waste water disposal

As yet, no guidelines have been issued for the establishment of waste water systems for alternative disposal of waste water.

Nevertheless, this does not prevent the licensing of waste water systems based on alternative methods of disposal. However, before granting a licence in such cases, the local council should require the applicant to submit a detailed project, documenting the design, treatment performance, etc. of the system to which the application relates.

In addition, it is recommended that the local council stipulate a requirement for an internal control programme for effluents from installations for whose design no national guidelines have been drawn up, and whose treatment performance is insufficiently documented.

Properties outside areas for which treatment standards are specified

Licences or enforcement notices issued to properties located outside areas for which a certain level of treatment is specified in the waste water plan are not subject to the statutory requirement for stipulation of a specific class of treatment.

This means that, in general, no regulatory requirements apply to:

	Areas located outside the catchments areas of waters for which quality objectives have been formulated
	Areas within the catchment areas of waters whose quality objectives are met
	Areas within the catchment areas of waters whose quality objectives are not met, but where discharges from dispersed settlements do not affect achievement of the quality standards.

It is important to stipulate requirements in new discharge licences to safeguard against any future, unacceptable deterioration of the water quality of a given water body.

11.5 Criterion for issuing enforcement notices for improved waste water treatment

General

The criterion for issuing an enforcement notice under section 30 of the Environmental Protection Act is that the performance of the existing waste water system is not environmentally sound. The precise meaning of the term ‘environmentally sound’ has been established on the basis of administrative practices and legal precedents.

However, despite the declared administrative practice etc. in these matters, there has been some uncertainty among local authorities as to the conditions that have to be documented before an enforcement notice can be issued pursuant to section 30 of the Environmental Protection Act. It was therefore considered appropriate to clarify this in the Statutory Order, section 27 of which now specifies the conditions that must be documented in order to justify the issuing of an enforcement notice under section 30 of the Environmental Protection Act.

Dispersed settlements

Discharges from dispersed settlements differ in characteristic respects from larger waste water effluents. Thus, it is generally possible to detect the impact of major effluents at the exact point of discharge into a water body, if, for example, the water quality is measured up- and downstream of the outfall. Usually, this is not possible with discharges from a single property. In such cases, pollution of watercourses or lakes is caused by the combined impact of several small effluents.

11.5.1 Specific requirements for documentation in connection with enforcement notices

Description of the property’s drainage facilities and identification of the receiving water body

It is a precondition for issuing an enforcement notice that the local council has established with absolute certainty that the property concerned actually increases the pollution of a given water body, and that the quality objectives established for the said water body are not satisfied. The receiving water body must therefore be identified before the enforcement notice can be issued.

A description of the property’s drainage facilities should already be available in the municipal records, but in the absence of such information, the local council is empowered under section 72 of the Environmental Protection Act to obtain the necessary information from the landowner.

If the property discharges waste water to a drainage system through which the water is conveyed to the polluted water body, enforcement notices may be based on information already available to the local authority, i.e. the Building and Housing Register ("Bygge- og Boligregistret – BBR"), existing maps and data on hydrological catchment areas, including watersheds.

However, it is important that the local council identifies the correct water body in enforcement notices for improved waste water treatment. If not, the enforcement notice is issued on false premisses, and thus invalid.

If there is any doubt about the correctness of information obtained by the local council, including maps of sewer system, drainage system, etc., it should be submitted to the landowner for confirmation.

If this documentation process leaves any doubt as to whether the effluent to be discharged, for example, via a drainage system, is actually connected to the polluted water body, it may be necessary to map the route of the effluent. In this connection, trace analysis may be a useful tool in identifying the receiving water body.

Effluent from the property must be shown to increase the pollution level of the recipient

The only condition for issuing an enforcement notice is that effluent from the property concerned contributes to the actual pollution of a water body located downstream of the outfall. It should be noted that it is immaterial whether the effluent pollutes the primary or the final recipient. Thus, for example, the primary recipient may be a watercourse that meets the quality targets set, but flows into a lake which is polluted to a degree that prevents achievement of the quality objectives established for the lake.

The size of the individual property’s contribution to the pollution of the recipient concerned is irrelevant to the issuing of an enforcement notice, since no landowner can claim a right to cause pollution on a certain scale. Thus, it is also irrelevant whether it can be documented that a given property discharges a waste water load that is evenly distributed over the year, or only for certain periods of the year.

A landowner who receives an enforcement notice therefore cannot demand documentation of the property’s pollution contribution through specific measurements or analyses. A general requirement for waste water treatment of a certain minimum efficiency is considered objectively justified and is, according to court practice, deemed to be authorised by statute without any detailed analysis of the waste water; see, i.a., the decision of the western division of the Danish High Court dated 18 May, 1995 and Danish EPA Recommendation No. 3, issued in 1996.

The recipient must be shown to be polluted to a degree that prevents achievement of the quality objectives

The recipient’s pollution status must be documented by comparing its environmental quality with the current quality objectives for the water body.

In connection with this requirement, the local authorities have raised the issue of how to enforce notices providing for landowners to improve the treatment standard for their waste water in order to comply with the level of treatment stipulated in the waste water plan for their catchment area, in cases where the quality objectives set for the recipient are achieved before the expiry of the time limit fixed for complying with the enforcement notice because the other landowners in the catchment area have met the requirements stipulated by the local authority.

It is the Environmental Protection Agency’s position in such cases that it is sufficient that the pollution of the recipient was documented at the time when the waste water plan was adopted, since it is the combined effect of several small influents that causes pollution of the receiving water body. Of course, there are cases in which certain circumstances may have changed the conditions of the water body significantly, and which are so important to the achievement of the quality objectives defined for the recipient that it is relevant to maintain that the basis on which a given enforcement notice was issued has changed. However, as already mentioned, the basic principle is that no one is entitled to cause pollution. Consequently, the enforcement notice remains valid and must be enforced.

It also follows from the common principle of equality before the law that equal effluent producers must basically be given equal treatment. Therefore, failure to comply with an enforcement notice should not place the offender in a "preferential position" compared with similar landowners in the same area who have complied with enforcement notices issued by the local authority.

The Environmental Protection Agency recommends that local authorities try to avoid this problem and follow-up on their waste water planning by, where possible, issuing enforcement notices to all landowners in a given (catchment) area simultaneously. The Environmental Protection Agency further recommends that, upon expiry of the time limit fixed for complying with such enforcement notices, local authorities take prompt and appropriate legal action against any landowner that fails to comply with the enforcement notice. For further information on the means of enforcement available in such cases, reference is made to Danish EPA’s Environmental Guidelines No. 12 1992, "Enforcement of the Environmental Protection Act".

11.6 Supervision

The local authority is responsible for supervising all waste water systems

The local authority supervises waste water effluents from systems representing a load of up to 30 p.e. Supervision of private waste water systems established in accordance with section 7a of the Act on payment rules for waste water installations etc. is also the responsibility of the local authority.

11.7 Right of appeal etc.

As mentioned in Chap. 4 above, appeals against municipal waste water plans cannot be brought before other administrative authorities. This also applies to any mapping/documentation of the property’s discharge facilities that may be carried out or provided by local authorities, since this constitutes an administrative act to establish the basis of an administrative decision, i.e. an enforcement notice.

There is no appeal to other administrative authorities against enforcement notices for improved waste water treatment pursuant to section 30(4) of the Environmental Protection Act or enforcement notices for percolation pursuant to section 30(5) of the Environmental Protection Act, provided that they apply to systems capable of serving up to 30 p.e., cf. section 30(4) of the Environmental Protection Act.

According to the general provisions of the Environmental Protection Act concerning judicial review, decisions relating to municipal mapping, waste water planning and enforcement notices for improved treatment issued to owners of systems of up to 30 p.e. may be brought before an ordinary court of law, cf. section 101 of the Environmental Protection Act.