What makes this topic difficult is firstly, that it is retrospective and secondly, that the means to deal with it are as yet inadequate. Thus while all other environmental legislation concerns ongoing or forthcoming pollution, the contaminated land problem concerns pollution that was caused at some time in the past by someone known or unknown. Moreover, the usual professional tools for dealing with pollution - technical, financial and legal - have not yet been developed sufficiently to enable the problem to be dealt with satisfactorily.
In the following I first review the course of events in Denmark (10.1) and then explain the Danish regulations on site registration and limitation of the right of disposal (10.2). Next I examine voluntary site remediation undertaken by present owners at their own expense (10.3), remediation undertaken under the provisions of the Contaminated Sites Act - the heart of current Danish legislation (10.4), and remediation undertaken under the terms of the agreement on the Danish Oil Industries’ Environmental Clean-up Association (10.5). Thereafter follows a review of the Depreciation Protection Act, which is a special scheme to protect house owners unfortunate enough to own a house on contaminated land (10.6), as well as accounts of administrative experience with newer contaminated sites (10.7) and the recovery of remediation costs from the polluter (10.8). Finally I summarize Danish administrative experience with the contaminated land problem.
10.1. Course of events and Strategies
10.1.1. Existing contaminated sites:
Up until a generation ago, industrial waste was not anything that caused consternation. One possibility for disposing of such waste was landfills, another was to bury it at the manufacturing plant - out of site, out of mind. Neither was it considered a problem that fluids ran out on the ground, either deliberately or by accident - gone was gone!
Similarly, it was considered convenient to sink oil and petrol storage tanks into the ground so that they did not take up space above ground.
Around 1970, consideration started to be given to the groundwater. New regulations concerning subterranean heating oil storage tanks were introduced in 1970. In 1976, more detailed regulations on waste oils and chemicals were introduced and a system was established to direct such waste to processing at the municipalities’ waste processing firm Kommunekemi A/S. In the following I use 1 April 1976 as the cut-off date for defining "existing" and "newer" contaminated sites.
10.1.2. Newer contaminated sites:
"Newer" contaminated sites are those contaminated after the cut-off date of 1 April 1976, i.e. they could have become polluted yesterday or up to 19 years ago. In cases of doubt, the practice is to classify the pollution as "existing", this being fairest for citizens.
The "newer" contaminated sites have been polluted in the same way as the "existing". Previous waste handling practices are hardly likely to have changed radically on 1 April 1976, but instead progressively, in step with increasing awareness of and respect for the new regulations. Data from Kommunekemi A/S would - as discussed in Section 5.3.6 - seem to support this assumption. Site contamination can still take place today, however, whether the pollution be intentional, inadvertent or accidental, not least from heating oil and petrol storage tanks.
There are no figures available concerning "newer" contaminated sites, mainly because registration is restricted to "existing" sites. The total number and extent of contaminated sites is probably greatest in the case of the existing sites.
10.1.3. Course of events:
The first widely publicized episodes concerning old contaminated sites took place in Sweden (BT-Kemi, 1977), USA (Love Canal, 1978) and Holland (Lekkerkerk, 1979). The episodes were taken note of in Denmark, but did not immediately lead to any new initiatives.
Awareness of the problem in Denmark was triggered by a political storm concerning a waste depository right alongside the North Sea that belonged to the chemicals manufacturer Cheminova (Harboøre), which manufactures pesticides. The depository had been established with the permission of the authorities in 1957, and was in use until 1962 for the disposal of mercury-containing waste. In 1981, studies were made of the mercury content of flounder in nearby waters. This gave rise to considerable media coverage and was eventually about to threaten Danish export of fish to the United Kingdom. The government then intervened: At an extraordinary Cabinet Meeting it was decided to excavate the site and place the waste in drums. With the permission of German authorities these were deposited in a disused mine in Harzen, Germany. The operation cost DKK 22 million.
As a result of this case, an inventory of waste disposal sites contaminated with waste oils and chemicals was drawn up in 1982.
In 1983, the first Danish law on chemical waste disposal sites came into effect. The idea of the law was that such sites should - if necessary - be remediated by the public authorities, who would then attempt to recover the costs from the polluter. At that time it was anticipated that there were approx. 500 such sites, and that they could be remediated in a 10-year period at a cost of approx. DKK 400 million. The idea was to prepare an inventory of sites and then remediate them in order of priority, i.e. according to how pressing the environmental problems were.
What was thought of at that time, however, was buried drums of waste; it was not realized that much industrial activity had also led to site contamination (through spills, etc.), and that large numbers of oil and petrol storage tanks had leaked over the years.
On the basis of the 1983 Act a system to administer the area was established in the Danish EPA, the Counties and the Municipalities. Most of the first years were spent on preparing the inventory, and little remediation work was undertaken. However, in preparing the inventory it became clear that it was not just old waste disposal sites that were a problem - what had taken place in the old industrial districts was much worse.
In 1988 a committee comprised of representatives from various authorities (The Waste Committee) undertook a thorough reexamination of the problem. This time it was anticipated that 6,000 contaminated sites would be found, the remediation of which would take 30 years and cost DKK 8,000 million. The Committee anticipated that a couple of thousand of the cases could be dealt with by ordering private enterprises to clean up their own pollution.
The Committee’s work formed the basis for the 1990 Contaminated Sites Act.
Both the 1990 Act and the 1983 Act only encompass "existing" contaminated sites, the line of reasoning being that as it has been illegal to cause soil pollution since the 1 April 1976 cut-off date, existing legislation would be sufficient to deal with any new problems.
Around 1990 the real estate market began to react to the contaminated land problem. Until then buyers and building societies had paid little interest to whether or not the land was polluted. Suddenly, however, the building societies began to pose questions about soil pollution, and to decline mortgaging the property if the site was contaminated. Simultaneously, solicitors started to take the possibility of site contamination into consideration during housing transactions. Three factors probably accounted for the reaction of the real estate market: The first was that an awareness of the problems posed by site contamination had spread to the professional circles working with property. The second factor was that the building societies had overreached themselves in the 1980s and had lost money on overmortgaged properties. The line taken in this branch in the 1990s was therefore one of extreme caution in granting mortgages. Finally, the third factor might have been the introduction of the new Contaminated Sites Act, one of the provisions of which is that if a site is included in the inventory of contaminated sites, then the fact has to be recorded in the Register of Mortgages. This made contaminated sites more visible than previously.
The consequence of the real estate market’s reaction was that private houses built on contaminated sites became unsaleable, and that contaminated land in industrial districts fell in price or became unsaleable.
It was considered politically unacceptable that house owners should be caught out like that. The majority of Danes live in detached one-family houses, and their personal finances are intricately bound up with the financing of their houses.
This led in 1993 to the passing of the Depreciation Protection Act, which provides Danish house owners with a safety net that protects the "innocent" owner, i.e. the house owner who purchased his property unaware of site contamination. In return for a site owners fee of DKK 40,000 or less, the owner can demand that the public authorities clean up the site quickly.
At the same time things moved forward concerning old oil and petrol storage tanks, a not inconsiderable source of pollution. Based on a Dutch idea, an agreement was drawn up between the environmental authorities and the oil companies whereby the latter were to collect a DKK 0.02-0.04 per litre levy on petrol in order to finance a contaminated site remediation fund (the Danish Oil Industries’ Environmental Clean-up Association - see Section 10.5 below). In return, the oil companies were able, together with the environmental authorities, to influence the course of remediation.
In 1993 the Danish EPA prepared a new estimate of the extent of the contaminated land problem. It is now anticipated that approx. 10,000 sites will be found and that remediation will cost DKK 22-24,000 million. It is expected that the private sector will clean up approx. half of the sites, while the public sector will have to clean up the remainder of the sites and cover at least 60% of the costs. To this needs be added 1994 estimates that an additional DKK 1,500 million will be needed for remediation of former gasworks sites (over and above the DKK 1,000 million already anticipated) and DKK 1,800-7,000 for remediation of "newer" contaminated sites, including gravel pits. The time frame for clean-up has been extended to 50 years. That many filled-in gravel pits now also come onto the list of problems is due to the fact that it has long been common to dispose of excavated soil from urban areas in gravel pits. The soil was not tested prior to disposal, and no-one realized that a considerable part of urban soil is contaminated. Placing the soil in gravel pits was a particularly unfortunate move since many of the gravel pits are located in water abstraction areas and because the groundwater resource is poorly protected.
The latest development is that a Committee has been established to draw up proposals for a new Contaminated Sites Act that will cover the whole area, i.e. both "existing" and "newer" contaminated sites. This is a reflection of the fact that the legal instruments covering the area have not been the best. However, a Bill cannot be brought before Parliament until 1996 at the earliest.
10.1.4. Strategies:
As a result of the above mentioned course of events, the strategies currently employed in Denmark are as follows:
| It is welcomed that private site owners arrange for remediation of contaminated sites themselves, but authorities want to control that remediation is undertaken in an environmentally sound manner. |
| The public authorities arrange for the remediation of existing contaminated sites when it is necessary (out of consideration for the groundwater resource or site usage), and when funding is available. |
| The clean-up of old petrol storage tanks is taken care of by the Danish Oil Industries’ Environmental Clean-up Association (see Section 10.5). |
| The public authorities arrange for the remediation of contaminated sites for house owners when so requested on condition that the owner pays the necessary site owners fee (see Section 10.6). |
| Newer cases of site contamination are taken care of by the supervisory authority (i.e. the County or the Municipality) as far as possible under the provisions of current legislation. |
| As far as possible it is attempted to recover remediation costs from the polluter. |
