Guidelines to Statutory Order on the Licensing of Waste Water Discharges 18. Administrative provisions and provisions governing the right of appeal18.1 Administrative provisions Administrative provisions 18.1 Administrative provisions In making decisions under the Statutory Order, local and regional councils are under a duty to ensure that the administrative provisions set out in Part 10 of the Environmental Protection Act are complied with. Part 10 of the said Act contains a number of administrative provisions, describing the procedures to be followed and the due process considerations to be observed by the authorities when making decisions under the Act. The provisions of Part 10 of the Act are supplemented by the general rules on the drafting of decisions laid down by the Act on Public Administration - including the rules providing for the parties to be heard, for guidelines for the lodging of appeals and for administrative acts to be reasoned. As far as decisions made by authorities under the Environmental Protection Act and the Statutory Order on the licensing of waste water discharges are concerned, compliance with the following administrative provisions are especially important. Decision format A decision made under the Statutory Order is to be communicated in writing to the party concerned and to any other interested persons, organisations or authorities, as well as to all authorities involved in the proceedings, e.g. in connection with opinions rendered, cf. section 74 of the Environmental Protection Act. Decisions against which appeal lies must also contain satisfactory guidelines for the lodging of appeals, stating that any appeal against the decision is to be lodged with the Environmental Protection Agency in writing. If no appeal lies, this must likewise be stated in the decision. Finally, the decision must provide information about the time limit within which appeals must be lodged or within which legal actions must be brought before the courts. Hearing of parties in connection with enforcement or prohibition notices Under section 75 of the Environmental Protection Act any enforcement or prohibition notice issued under the Act or under orders or regulations made thereunder must be notified in advance. In terms of waste water regulations, this requirement is especially relevant to enforcement notices issued under section 30 of the Environmental Protection Act, but the advance notification requirement must also be deemed to extend to decisions under section 20 on the revocation of section 19 licences for discharge of waste water by percolation etc. The advance notification or information under section 75(1) of the Environmental Protection Act must be given in writing to the party to whom the notice is directed, and must describe the right to access public files and the right to make statements under the rules laid down by the Act on Public Administration. Moreover, the advance notification must be drawn up as a letter of intent, outlining the decision contemplated by the authority. Under section 75(2), first sentence, advance notification may be omitted in cases where immediate action is required. Besides section 75 of the Environmental Protection Act, the general provisions of the said Act on Public Administration providing for the parties to be heard apply - notably section 19. For further guidance on advance notification of enforcement and prohibition notices, see Danish EPA’s Environmental Guidelines No. 12/1992 on the enforcement of the Environmental Protection Act. 18.2 Appeals and legal actions Appeals against decisions made under the Statutory Order are subject to the provisions of Part 11 of the Environmental Protection Act on appeals and legal actions and Part 12 on the Environmental Appeal Board. 18.2.1 Right of appeal Decisions made by local or regional councils may be appealed against to the Environmental Protection Agency unless otherwise provided under the Statutory Order. Time limit for appeals Under section 93 of the Environmental Protection Act the time limit for lodging appeals is four weeks from the date on which the notice or decision is deemed to have been notified. However, if the decision has been publicly notified, the time limit runs from the date of publication. Format and lodging of appeals Appeals must be lodged in writing to the authority making the decision, which authority must in turn, upon the expiry of the time limit, submit the written appeal to the Environmental Protection Agency, enclosing all case documents and any other material on which the decision was based, cf. section 94 of the Environmental Protection Act. The effect of appeals on compliance with enforcement or prohibition notices Under section 95 of the Environmental Protection Act, appeal of an enforcement or prohibition notice generally results in a stay of execution. However, this does not apply where it has been decided by the authority issuing the enforcement or prohibition notice in the first instance that for a specified reason the notice is to be complied with immediately, cf. section 78 of the Environmental Protection Act. Stay as to application of licences etc., on grounds of appeal An appeal against any licence, approval or exemption granted under the Statutory Order does not result in a stay of execution, cf. section 96 of the Environmental Protection Act. Any application of a licence before the expiry of the time limit for lodging appeals or before the licence etc. has been reviewed by the appeals authority will be at the risk of the licence holder and will not involve any restrictions of the right of the appeals authority to vary or revoke the licence, approval or exemption, etc. Parties entitled to appeal The parties entitled to appeal against decisions made under the Statutory Order are listed in sections 98-100 of the Environmental Protection Act. Basically, the party to whom the decision is addressed and any party with a separate and substantial interest in the outcome of the case are entitled to appeal. In addition, the regional council may appeal against decisions by the local council, and vice versa. Moreover, the Public Health Officer may appeal against decisions made by the authorities according to Parts 3-5 of the Environmental Protection Act or thereunder, thus including decisions made under the Statutory Order on the licensing of waste water discharges. Legal actions brought before the courts Under section 101 of the Environmental Protection Act, all decisions made under the Statutory Order may be brought before the courts. Under section 101, process must be filed within six months from the date of notification of the decision to the party concerned, publication in the press, etc. 18.2.2 Environmental Appeal Board Decisions made by the Environmental Protection Agency or by the Minister under Parts 4 and 5 of the Environmental Protection Act may be appealed against to the Environmental Appeal Board within four weeks of notification, cf. section 103(1)(ii) and section 108, cf. section 93 of the said Act. Section 103(1)(ii) provides for a further condition for the right to appeal, viz. that the decision is deemed to be of major or general public importance. Under section 103(2) of the Environmental Protection Act, the Environmental Protection Agency is competent to decide in matters relating to its own jurisdiction. Appeals against decisions by the Environmental Protection Agency are to be submitted directly to the Environmental Appeal Board. Where an appeal lodged against an enforcement or prohibition notice is entertained by the Environmental Appeal Board, execution is stayed unless otherwise decided by the Board or provided under section 78(2) of the Environmental Protection Act.
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