13.3.   Administrative enforcement

The provision was introduced into the Environmental Protection Act in 1984, and proved to be of considerable educational value. Prior to 1984 it was not uncommon for the Municipalities to look the other way and let breaches continue for years. After 1984 it has been easier for local politicians to understand where their duty lies.

The means used to stop unlawful situations naturally has to be consistent with the proportionality principle enshrined in administrative law. Thus the use of stronger measures than necessary is not allowed, and measures may not be employed that are disproportionate to the purpose. If issuing an injunction is sufficient to stop an unlawful discharge, then there is no reason to close down the enterprise. Similarly, if an enterprise consistently omits to carry out noise measurements in accordance with the requirements, then it would be an overreaction to close down the enterprise; one could report the matter to the police, or the authority could order the measurement undertaken at the enterprise’s expense.

The supervisory authority can fulfil its duty to bring unlawful situations in line with the law by dealing with the matter itself (administrative enforcement) or by letting the judicial system deal with the matter (typically through reporting the matter to the police).

The frame of reference is that the environmental authority should try to bring the enterprise back in line itself using the powers bestowed upon it. However, if a serious breach of environmental law has already taken place, the matter is immediately reported to the police (see Section 13.5).

Before I examine the individual means of enforcement, I will outline a development in legal theory that is of considerable significance for enforcement:

During the first 10 years or so under the Environmental Protection Act, the environmental authorities automatically gave appeal guidance when issuing an injunction to an enterprise; this applied whether the injunction concerned new discharge requirements necessitating the establishment of a sewage treatment plant, or compliance with previously stipulated discharge requirements. The enterprises certainly wasted no time in appealing.

Since 1984, however, the law has distinguished between injunctions that impose new requirements on an enterprise (constitutive legal measures) and measures based on requirements already imposed on an enterprise (substantiatory legal measures). When one tells an enterprise that is has to comply with its environmental requirements this does not have to be announced in advance, and the enterprise cannot appeal. The term "substantiatory" legal measure has made enforcement easier.

In the following I present - in increasing order of severity - the individual means of enforcement available to the Danish environmental authorities.

De facto legalization means that an enterprise is given permission to do something subsequent to already having done it. This is common in connection with the establishment of facilities or changes in enterprises. Nonetheless, the matter may still be reported to the police concomitantly with legalization.

In the case of too great emissions, de facto legalization is unusual. An application of that type will not be processed. Instead the enterprise can explain itself in court under the police prosecution. The probability that the enterprise will be acquitted of the breach of emission requirements is minimal, however.

A deadline extension is mainly seen in injunction cases, and is a notification by the environmental authority that it accepts the enterprise’s explanation for the overrun of the original deadline, and as a consequence will not report the matter to the police on that occasion.

A recommendation is the most usual reaction to an unsatisfactory situation, and is the means whereby the environmental official recommends that the matter be put in order before a specified deadline. He often makes an "agreement" with the enterprise as to what should be done to rectify the situation. The term "agreement" is employed for psychological reasons; it places the two parties on a more equal footing. The legal content of a recommendation or "agreement" is the same, however: The environmental authorities relinquish the right to undertake further enforcement measures during the specified period. The enterprise is no more bound than it had previously been, however.

The term recommendation is not mentioned in the Environmental Protection Act, but is nevertheless employed by supervisory authorities in all areas. A recommendation can be made in writing, but it is quite common that it is just noted in the supervisory report, a copy of which is sent to the enterprise.

A warning is a letter from the environmental authority ordering that such and such an unlawful situation should be brought in line with the law within a specified deadline. The warning has the same effect as the recommendation, but the tone is more formal and it is understood - perhaps even - clearly stated in the letter - that the next step will be to report the matter to the police.

A cessation notice is an injunction to cease an unlawful activity, for example, an ongoing building project for which environmental authorization has not been granted, or the deposition of waste on a site that is not approved as a landfill. Cessation notices are quite usual under such circumstances.

A prohibition is an order to an enterprise that continues to breach its authorization conditions to immediately cease production.

Restoration injunctions are usual in cases of soil contamination, where the requirement will be to remediate the site, and in cases of unlawful deposition, where the requirement will be to transport the deposited material to a controlled landfill/waste depository. An injunction requiring the removal of unlawful activity can be employed in similar situations.

Direct intervention involves the environmental authorities seeing to it that the necessary physical measures are undertaken. Direct intervention is based on regulations that are specific to the pollution area. There can be two different backgrounds necessitating direct intervention:

The first is when an enterprise refuses to comply with an administrative enforcement measure. In such cases the environmental authority can let the measures ordered be undertaken at the expense of whoever is responsible once the deadline has expired. An example could be an enterprise that has not undertaken a measurement as stipulated in its authorization. The authority can then requisition the measurement from a laboratory at the expense of the enterprise. Another example could be an enterprise that has not complied with an injunction prohibiting further production. In that case the authority can - if necessary under police protection - do whatever is necessary to ensure that production actually stops (e.g. cut off the electricity). Direct intervention on the above mentioned grounds is not very common, however, since the environmental authority has to pay the bill initially and because very antagonistic enterprises are seldom good payers. The environmental authority normally chooses to report the matter to the police instead. However, direct intervention has the advantage that it solves the environmental problem immediately.

The second background necessitating direct intervention is acute pollution, i.e. cases where pollution poses an immediate serious danger to health or where there is an immediate danger of the occurrence or spread of serious pollution. This usually concerns pollutant spills on the ground or pollution that is on its way down to or down a watercourse. In such cases it is uninteresting whether the situation arose as a result of a breach of the law - it is the duty of the environmental authority to take immediate action. The bill can be forwarded to the responsible party at a later date. The Municipalities are well practised in dealing with acute pollution.

Administrative enforcement statistics: The annual administrative enforcement data submitted to the Danish EPA by the Counties and Municipalities is as follows: