14 November 2019

Water permit holders liable for unknown and unmeasurable substances in waste water

The highest administrative court in the Netherlands recently ruled that companies holding water permits are in breach of the Dutch Water Act if unknown and unmeasurable substances are detected in waste water that they have discharged. It further held that this justifies immediate enforcement action. Waste water often contain substances which are unknown or cannot be measured when companies apply for a permit under the Dutch Water Act. In arriving at its decision, the Administrative Jurisdiction Division of the Council of State focused on the question of whether these unknown or unmeasurable substances are covered by the water permit and, therefore, justified. This important ruling is sure to have far-reaching consequences, not only for the chemical industry, but also for the industrial sector as a whole.
The Dutch Water Act prohibits the introduction of pollutants or harmful substances into a surface water body, unless a water permit has been granted for this purpose. With the Council of State's recent judgment, it is clear that the permit required for the discharge of the waste water only covers the discharge of those pollutants or harmful substances which have been explicitly identified in the application for the permit. This means that a water permit relates to the discharge of waste water and to its known composition. The case focused on the question of whether a water permit also covers unknown and unmeasurable substances. The Council of State ruled that the substances found in the waste water must be known before the discharge takes place. In other words: the permit does not cover substances which are unknown and cannot be measured. To support this interpretation, the Council of State pointed to the nature of the activities for which a permit is granted – in this case, chemical plants – and the fact that the surface water body is used for drinking water production. The Council of State further argued that permit holders are expected to have knowledge of substances that may be present in discharged industrial waste water. As such, water permit holders are fully responsible for the discharge. The ruling may seem logical from a legal point of view but, in practice, it leaves water permit holders in limbo. Firstly, it follows from the judgment that the permit covers the original substances listed in the permit and does not include the components that are dissolved within the substance. These components, however, may also occur in the waste water. Since many components have, even scientifically, not been identified or classified, listing them in the application for a water permit is impossible. Secondly, as a consequence of the chemical processes in chemical plants and the processes which take place during waste water treatment, original undetectable substances – or even "new substances" – can be found in the waste water. For these reasons, it is often technically and factually impossible to determine, beforehand, the exact composition of the waste water on the level of individual components. This ruling suggests that permit holders violate their permits even when newly emerging and unknown substances and components are detected in the waste water, which means that immediate enforcement actions can be taken. The Council of State's ruling will undoubtedly have far-reaching consequences for the industrial sector as a whole. To prevent the threat of immediate enforcement actions by competent authorities, permit holders should make clear arrangements with the competent authority and other stakeholders on how to act when newly emerging and unknown substances are detected in the waste water, and on how to include these new substances in the water permit. For the decision on the scope of the water permit (in Dutch), click here (para. 12-12.5) and on the penalty payments due, click here (para. 4-6.1).