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SEWER MINING AS AN OPTION TO Uses of recycled wastewater DIVERSIFY OUR WATER SOURCES Recycled wastewater may be used to augment Introduction potable and non-potable water sources in Victoria. Potable water sources are those which Between 1997 and 2009, inflows into supply our drinking water. Potable water is of ’s major water storages were 39% a relatively high quality and is fit for human lower than the annual long term average from consumption. Non-potable water sources are 1913 to 19961 due to decreases in rainfall those which cannot be consumed by humans and runoff associated with Melbourne’s worst but can be used for purposes with minimal drought on record. human exposure. Melbourne’s water supplies will be further Potable uses of recycled wastewater strained as a result of: Although theoretically and legally possible, there – Likely increases in demand stemming from are no documented cases of direct recycled population growth; and wastewater systems producing potable water – Likely decreases in supply resulting from in Australia. There are, however, examples of the impacts of climate change on water what is known as indirect potable re-use. This resources. is where treated wastewater is introduced into an existing potable water source, such as a Diversification of water supply options is reservoir, river, or groundwater aquifer, where it imperative in order to provide water security mixes with the water source before later being in this challenging environment. In this article, drawn upon and further treated as purified we will briefly outline some diversification drinking water. The reservoir or aquifer acts as alternatives and focus on an emerging water an environmental buffer during the time water is supply option – namely, sewer mining. stored, allowing mixing and treatment processes Options for water sources to continue. Our water sources fall within two broad In Australia, the following potable water supplies categories - traditional and alternative. The include elements of in-direct potable reuse: defining feature of traditional water sources is – Lake Burragorang (Warragamba Dam) which that they rely on rainfall as their primary supply. services Sydney and receives upstream Reservoirs, dams and groundwater fall within effluents from Goulburn and Lithgow; 2 this category . Melbourne relies heavily on – which services Melbourne traditional sources, receiving most of its drinking and receives effluent from Olinda Creek water supply from reservoirs. Plant; Alternative water sources are not directly – The Mount Crosby Weir system which dependent on rainfall and stream inflows. These services Brisbane and receives effluent from water sources include seawater, stormwater and Fernvale, Esk, Lowood, Toogoolawah, Gatton wastewater. and Laidley; and In this article we will focus on wastewater. As – The City of Adelaide draws part of its supplies a water source, wastewater has a number of from the Murray River, to which is discharged benefits. First, it is available in relatively large treated effluents from towns along the volumes. Secondly, there is (and will continue Murray and Darling River systems. to be) a constant supply. Finally, to a large Non-potable reuse of recycled wastewater extent, the infrastructure already exists to facilitate access. On the other hand, however, In Victoria, recycled wastewater can be used for wastewater must be treated before it can be many non-potable uses. These include: used. Once wastewater is recycled, it can be put to a number of uses. – Urban – irrigating sports ovals, toilet flushing;

1. Website: www.melbournewater.com.au/contents/sustainability/climate_change/adapting_ to_climate_change/water_supply.asp. 2. Groundwater is more complex and is affected by, amongst other things, riverflows which, in turn are affected by rainfall. 0 Maddocks Water Update update Water

july 2011

– Agricultural – of crops and pastures; The defining features of large scale facilities Examples of large scale facilities and are: Eastern Irrigation Scheme – Industrial – use in industrial processes. – The source of wastewater to be recycled is This facility is a joint venture between Melbourne The particular use to which recycled water is put treated wastewater from a water treatment plant. Water and the Water Infrastructure Group is referred to as a ‘beneficial use’. Depending (WIG). It is located proximate to the Eastern on the beneficial use, the recycled water must – The sewer mining proponent extracts the Treatment Plant. Melbourne Water supplies be treated to a particular standard. In Victoria, treated wastewater from the water treatment treated wastewater from the Eastern Treatment the regulation of these standards is carried plant and transports it to a purpose-built Plant to the WIG’s wastewater treatment plant. out principally by the Environment Protection wastewater recycling plant for further The WIG treats the water at its own recycling Authority (EPA) and, to some extent, by the treatment. plant to Class A standard. The WIG transports Victorian Department of Health. – The recycled wastewater is transported to the recycled water to around 80 customers The EPA’s Guidelines for Environmental multiple customers for use. for horticultural, recreational, industrial and residential use, including primary producers to Management: Use of (the The benefits of a large scale facility are: Reclaimed Water Guidelines) provide a irrigate crops and South East Water for dual pipe framework for best practice management of – The proponent has access to a relatively large use in residential developments as a substitute reclaimed water use. Importantly, the Reclaimed volume of treated wastewater. for potable water for toilet flushing and garden Water Guidelines only apply to ‘reclaimed water’, – The treated wastewater is of a relatively watering. which is defined as “water that has been derived higher quality than raw sewage and, therefore, ’s Altona Recycled Water from sewerage systems or industry processes requires less treatment in the wastewater Treatment Plant and treated to a standard that is appropriate for recycling plant. City West Water’s Altona Treatment Plant, its intended use.” This narrow definition means – Treated wastewater which would otherwise which opened in April 2011, captures treated that the Reclaimed Water Guidelines do not have been discharged into a natural water apply to recycled stormwater or seawater. effluent from the existing Altona Treatment source is reused for the benefit of end- Plan and further treats the effluent to Class A The Reclaimed Water Guidelines classify users. standard. It produces 9ML of Class A water recycled water according to Classes A, B, C and At the other end of the spectrum are small daily and, through a series of pipes, transports D (with Class A corresponding to the highest scale facilities. The defining features of these the water to: quality). These guidelines set out the water facilities are: quality parameters and permissible beneficial – plastics manufacturer Qenos for use in its uses for each class of recycled water. For – The source of wastewater to be recycled is boilers and cooling towers; example, if recycled water is sought to be used raw sewage extracted from sewers beneath – Sanctuary Lakes Golf Club to irrigate its for irrigation of crops for human consumption, (or proximate to) the land on which it is to be golf course; the recycled water must be treated to Class A. treated and then used. – Kooringal Golf Club to irrigate its golf course; What is sewer mining? – The proponent treats the raw sewage in a and purpose-built wastewater recycling plant. – Sewer mining is the process of accessing a Hobsons Bay City Council to irrigate Altona – The recycled wastewater is used on, or Green Park HD Graham Reserve. sewer prior to or after it reaches a sewage proximate to, the same land where the raw treatment plant and extracting the sewage sewage was extracted. Water will also be used for urban streetscape for the purposes of treating it in a separate watering and dust suppression. treatment facility. The treated sewage is then Compared with a large scale facility, the main put to another use as recycled wastewater. benefit of a small scale facility is that extracting wastewater in this way reduces the burden on Sewer mining projects may be divided into wastewater infrastructure. two main categories - large and small scale facilities.

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july 2011

Examples of small scale facilities Legal right of access to sewage In contrast, New South Wales has implemented a state-based third party access regime for water Sunshine Golf Course It is essential that a proponent of either a large infrastructure pursuant to the Water Industry or small scale sewer mining facility clearly This facility is one of the first sewer mining Competition Act 2006 (WICA). The aim of establishes a legal right of access to either raw WICA is to facilitate third parties gaining access projects in Melbourne. Raw sewage is extracted sewage (in the case of small scale facilities) or from a sewer running beneath the Sunshine to an existing water company’s ‘infrastructure treated wastewater (in relation to large scale service’. The regime enables third parties to Golf Course. The sewage is treated in an onsite facilities). treatment plant, producing recycled water which compete with existing water companies without is used for irrigation the golf course. In both cases, the proponent must approach the having to incur the expense of duplicating the owner of the infrastructure and enter into an infrastructure. In this sense, it is similar to Part Council House Building – Melbourne City access arrangement. Whilst ownership of the IIIA under the CCA. A third party seeking access Council sewerage infrastructure may be straightforward, firstly needs to obtain a declaration for the CH2 has a wastewater recycling plant in its the legal position regarding ownership of the infrastructure service. “Infrastructure service” basement, which recycles all wastewater sewage is not as clear. The general assumption is defined as ‘storage, conveyance or reticulation produced on site and extracts sewage from the which proponents in this field are currently of water or sewage by means of water industry Swanston Street Sewer. The water is treated adopting is that the owner of the infrastructure infrastructure’ but not including ‘the supply of to Class A standard and used for watering is also the owner of the sewage. goods (including the supply of water or sewage)’. plants, flushing toilets and within the cooling Therefore, the access regime does not apply to In Victoria, if a water company refuses access to sewer mining proponents. tower system. a proponent, section 46 of the Competition and Establishing and operating a sewer mining Consumer Act 2010 (CCA) is the most likely WICA does, however, provide specific regulation project avenue of redress. Section 46 prohibits certain of sewer mining disputes. It provides for corporations from misusing their market power disputes between the sewage service provider From a legal perspective, the following matters for certain purposes. It is also worth noting that and the sewer miner to be arbitrated by the must be addressed to establish and operate a Part IIIA of the CCA could potentially provide jurisdictional regulator – the Independent sewer mining project: another avenue of redress. This framework Pricing and Regulatory Tribunal (IPART) – or – Establish a legal right to access the establishes a legal right for third parties to share a person nominated by IPART, but only if the sewage; the use of certain infrastructure services on service provider has lodged a notice with IPART reasonable terms and conditions. A third party setting out the provider’s policy on sewer mining. – Enter into contractual agreements between can seek access by obtaining a declaration The arbitrator must give effect to the service the owner of the sewage, the sewer mining for that particular infrastructure service from provider’s policy and, subject to that policy, any proponent and the end user of the recycled the Minister. Once the service is declared, the other matters prescribed by regulation. WICA wastewater; negotiation between the access seeker and does not require or authorise IPART to review or approve a sewer mining policy. Importantly, there – Obtain regulatory approvals, including the infrastructure owner is regulated by Part is no mechanism under WICA to compel the environmental and planning approvals. IIIA. If negotiations break down, the matter can be referred to the Australian Competition and water company to provide access to sewage, as Consumer Commission for a determination. opposed to the sewerage infrastructure. WICA envisages that the water companies themselves will develop their own policies regarding this. Contractual arrangements A sewer mining proponent will need to enter into a sewer mining agreement with the entity from whom they are obtaining the sewage. This agreement will cover a range of issues including: – Sewage content and quality. – Quantity of sewage available for sewer mining. – Charge for access and source. – Term of the agreement.

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In addition, a sewer mining proponent will need Additional risks include impacts on animal health Under the EP Act, any licence or works approval to enter into an end-user agreement when the and the natural environment as a result of the must be consistent with the State Environment proponent intends to distribute recycled water to relatively high concentration of nutrients in Protection Policies (SEPPs). SEPPs set out a third party, such as a golf course or a housing recycled wastewater. environmental quality objectives for all aspects estate. Typical terms of an end-user agreement of the environment, including air quality. Regulatory response to public health risks will include: In relation to odour emissions, the relevant – Quality of recycling water The works approval and licensing system under SEPP is the SEPP (Air Quality Management). the Victorian Environment Protection Act 1970 Particularly relevant are the emission limits for – Availability EP Act ( ) seeks to mitigate the public health stationary sources of odour emissions, such as – Fee impacts and impacts on the natural environment a wastewater treatment plant. In general terms, – Permitted use associated with producing and using recycled odour is managed by setting an odour detection wastewater. However, certain sewer mining – threshold of one odour unit at and beyond the Ownership & risk facilities will be exempt from the requirement – Releases and indemnities boundary of the plant (an odour unit is the lowest to obtain a works approval and licence if certain odour concentration that can be detected by half – Insurance criteria are met. the population). Regulatory approvals These criteria are set out in the Reclaimed Water The EPA also addresses the impacts of odour Guidelines. These Guidelines are essentially a on the surrounding land uses by recommending In order to establish and operate a sewer tailored regulatory response to the particular mining facility, a number of regulatory approvals buffer zones around land uses such as a risks associated with sewer mining facilities wastewater recycling plant. It does this in its are required. These approvals respond to the (and other recycled wastewater projects). various environmental and public health risks Recommended Buffer Distances for Industrial The Reclaimed Water Guidelines contain Residual Air Emissions (Buffer Guidelines). associated with treating and using recycled requirements in relation to: wastewater. The purpose of these buffer zones is to – permitted treatment methods for recycling discourage land use and development within Main risks associated with sewer mining wastewater; a specified threshold distance of, for example, projects – water quality parameters required to be met a wastewater recycling plant, that is sensitive The risks associated with sewer mining broadly for Class A, B, C and D recycled water; to and incompatible with that environmental fall under two categories: impacts from the plant. The Buffer Guidelines – permitted end-use for the different classes set out different buffer distances depending on – Risks associated with the treatment of of recycled water; the type of treatment processes and its capacity wastewater in a wastewater treatment – monitoring, reporting and auditing (between 100 metres and 2.2 km). plant. requirements for treatment plants; and Odour is also managed through the planning – Risks linked to the use of recycled – a requirement to submit an Environment law framework. Planning generally intervenes wastewater. Improvement Plan (EIP). when a proposed use and development of The principal risk associated with treating If the recycled water is to be treated to Class A land triggers a planning permit requirement wastewater is the impact on air quality emanating recycled water, the Reclaimed Water Guidelines under the planning scheme. This may depend from a wastewater treatment plant. This can require that the project be endorsed by the upon whether a sewer mining facility can be manifest as a health risk to residents who live Department of Human Services (DHS). In characterised as a ‘utility installation’ (land used in the area proximate to the plant and can affect turn, the DHS requires that a Recycled Water to collect, treat, or dispose of storm or flood their amenity. Management Plan (RWMP) be prepared, which water, sewage, or sullage), which does require addresses quality control and monitoring and a permit, or a ‘minor utility installation’ (a sewage The risks associated with the use of recycled validation of treatment processes. treatment plant and any associated disposal water will ultimately depend on the intended works, required to serve a neighbourhood), beneficial use of the recycled water. The main risk Regulatory response to odour risks which does not require a permit. associated with the use of recycled wastewater is the risk to public health because wastewater Odour risks are addressed through the EP Act contains many microbial pathogens. and the planning law framework.

0 Maddocks Water Update update Water

july 2011

Assuming that a wastewater recycling plant does Conclusions trigger a permit requirement, odour impacts will be a relevant consideration for the responsible Diversification of water sources is an important authority in deciding whether or not to grant the way to address water scarcity, which is likely to be permit. In particular, clause 13.04-2 of every a growing problem in the future. Diversification planning scheme in Victoria provides that: increases supply by improving access to water that is suitable for human consumption and – it is an objective of planning to protect and irrigation. Sewer mining is a good option to use improve air quality. precious water resources that might otherwise – wherever possible, there be a suitable be wasted. While the regulatory context for separation between land uses that reduce these projects is relatively complex, the number amenity and sensitive land uses. of sewer mining projects are gradually growing, proving that the regulatory barriers are not Clause 13.04-2 directs planning decision insurmountable. makers to consider State SEPP (Air Quality Management) and the Buffer Guidelines in This article was prepared by Jake Dabscheck, assessing the separation between land uses that lawyer in the Planning & Environment Team and reduce amenity and sensitive land uses. member of the Maddocks Water Team.

0 Maddocks Water Update maddOCKS Water Team For further information regarding this Update, please contact a member of our team below:

Greg Campbell Shane Ridley Partner Special Counsel 61 3 9288 0587 61 3 9288 0519 [email protected] [email protected]

Paul Woods Barnaby McIlrath Partner Senior Associate 61 3 9240 0874 61 3 9288 0614 [email protected] [email protected]

Dariel DeSousa David Hand Consultant Associate 61 3 9288 0552 61 3 9240 0828 [email protected] [email protected]

John Thwaites Jake Dabscheck Consultant Lawyer 61 3 8615 0380 61 3 9288 0517 [email protected] [email protected]

The material contained in this Update is of the nature of general comment only. No reader should rely on it without seeking legal advice. If you do not wish to receive further Updates from us, please email [email protected].

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