Number of sanctions during the period 1985-93
13.7.1. The start around 1980:
The first major industrial criminal cases came before the courts from 1979 onwards. They helped to give the environmental authorities the reputation in the courts that they were disorganized and hysterical.
This poor start has had considerable impact because the courts - despite the amendments to the law that have since been introduced - still place weight on former practice. Judges attach considerable importance to the rulings made by colleagues in similar cases.
Things would have gone much easier on this front if the environmental authorities had started by presenting cases to the courts that they had dealt with correctly themselves, and which concerned pollution. Subsequent legal practice shows that the courts are willing to take a stand against polluters. However, the courts still have difficulty in understanding the many regulatory details and administrative pathways that apply in the environmental area.
Number of sanctions during the period 1985-93
13.7.2. The trend since the early 1980s:
Since then Parliament has on several occasions (1984, 1986 & 1991) expressed the wish to see more severe penalties in environmental cases. This has urged the environmental authorities and the prosecution to fight more in these cases, but the courts have not yet let it be known whether they will move in line.
Supreme Court rulings normally have a greater impact on the way that the courts mete out penalties. In 1987 the Supreme Court set the standard for fines in agricultural cases concerning watercourse pollution, a standard which was somewhat higher than former practice. In 1994 the Supreme Court pronounced its first judgement in an industrial case: the fine was increased considerably as compared with that imposed by the preceding court (Supreme Court: DKK 300,000; Eastern High Court: DKK 80,000).
The trend in penalties for criminal environmental cases is illustrated by the three figures that follow.
Figure 13.4 reflects the fact that the supervisory system really got going in 1987. No statistics are available from before 1985, but neither were there many criminal environmental cases. The peak for agriculture in 1991 is due to the newly introduced prohibition of straw burning. The total number of sanctions has been just over 200 per year in recent years; these are the few police reports that eventually go so far as to end in a fine or other sanction.
Sum of fines confiscations during thr period 1985-93
Figure 13.5 shows that it is industry that receives the large fines. The statistics are considerably influenced by whether or not there are major cases in the individual years. A total sum for fines in 1992 of DKK 3 million is not enormous though, and one could suspect that the environmental authorities have not managed to get their hands on everyone who has profited from transgressing the Environmental Protection Act.
Figure 13.6 demonstrates a clear tendency in court practice. There is no reason to believe that the breaches of the regulations have become more serious - to the contrary. It is more that the environmental authorities and the prosecution have become better at presenting their cases, and that the courts are more attentive.
The maximum penalty under the Environmental Protection Act was an unlimited fine until 1984, 1 year in prison from 1984-92, and 2 years in prison from 1992 onwards. The maximum penalty so far imposed is 30 or 40 days detention (4 persons, one in 1993, one in 1994 and two in 1995).
13.7.3. Penalties in industrial cases:
In the present context "industry" means all the activities and facilities discussed in Chapters 5 and 6.
First of all, one has to distinguish between whether the infringement is formal, i.e. a non- injurious breach of regulations, or injurious, i.e. something is actually released into the environment.
Maximum penalty
The typical formal infringement consists of an enterprise undertaking expansion without first obtaining the necessary environmental authorization. When the matter comes to light the enterprise is given the authorization, but without any major change to the facility because it was built in accordance with the environmental requirements current at the time. By its mode of action the enterprise has benefited (i.e. has saved both time and money) from not waiting for authorization. The hitherto highest fine for an infringement of this type is DKK 30,000, even though it concerned a building project costing DKK 6 million.
In a subsequent case of the same type the County decided to stop construction of the unlawful building. According to information that the enterprise gave to the press, this cost them DKK 1 million. Since then, there have not been any problems with unauthorized building in the branch in question.
The injurious infringement consists of a greater discharge having occurred or more noise having been made than was authorized. In other words, the enterprise has polluted more that it is authorized to do.
In this group one has to consider whether the infringement was intended to provide a financial advantage, and whether this can be reckoned up. If this is the case, it provides an important basis for the sanction; one confiscates a sum corresponding to the financial advantage, and in addition imposes a fine or imprisonment, depending on the severity of the case.
If the financial advantage cannot be reckoned, the penalty will be an estimate.
Imprisonment has hitherto been imposed in three cases involving 4 persons. One of the cases concerned a haulage contractor who had deposited 1,000 tonnes waste (leftovers from shredded cars) in a disused gravel pit, thereby posing a threat to the groundwater. It will probably be necessary to remediate the site at a cost of many million Danish crowns. The haulage contractor had earned DKK 190,000 on the task working for a German enterprise from where he had collected the waste. He was sentenced to 40 days detention and the DKK 190,000 was confiscated.
The second case concerned a scrap merchant who ran a widespread business recovering metal by burning the coating off cable scrap, the latter process being undertaken by others. Cable burning causes serious heavy metals pollution of the surrounding ground. The scrap merchant was charged on approx. 20 counts of cable burning and was sentenced to 40 days detention.
The third case concerned two scrap merchants who ran a shredder. At some point, when the firm’s economy was poor, they just let the waste from the shredder accumulate. Before the environmental authorities managed to stop them the waste heap had grown to 20,000 tonnes. The authorities had to pay DKK 9 million to remove the waste because the two merchants had no money. They were each imprisoned for 30 days.
The greatest financial advantage hitherto recorded was in a case concerning a steelworks that rinsed soil from the scrap iron that comprised the enterprise’s raw material. The waste soil was laid out in an earthworks alongside the adjoining fjord. The enterprise knew that the soil contained heavy metals, and the authorities therefore classified the waste soil as hazardous when they became aware of the problem. Such waste soil is now placed on a special depository on the grounds of the enterprise. However, by placing the waste soil alongside the fjord the enterprise had saved DKK 1.2 million. That sum was confiscated in the resultant court case and the enterprise was fined an additional DKK 300,000.
The only Supreme Court ruling concerning an industrial infringement concerns an enterprise that breached a number of its authorization conditions. The most important of the breaches was that the enterprise had placed some large heaps of lead-containing particulate waste out in the open, close to neighbouring gardens. The wind blew the waste into the gardens causing such high lead levels in the soil that the Health Inspector advised against allowing small children to play in the gardens. The lower court imposed a fine of DKK 200,000 for this infringement, while the High Court reduced this to DKK 80,000 on the grounds that the County had erred in allowing the enterprise to establish itself so close to houses. However, the Supreme Court overruled the High Court ruling on the grounds that the enterprise should comply with the conditions it was given and should be judged on the importance of the infringement. The Supreme Court therefore raised the fine to DKK 300,000.
It has been clearly established in legal practice that the enterprise’s size and turnover is of no relevance to the penalty. If the emission is small, the fine is small, irrespective of how large the enterprise might be. Conversely, if the emission is large, the penalty is large, irrespective of how small the enterprise might be.
For a long time the prosecution has had difficulty in convincing the courts that environmental cases could involve large sums of money. The courts very often accepted the assertions of the accused (made with the assistance of accountants) that they had not in fact made any money out of the specific actions. However, as time has gone by the prosecution has become better at presenting its calculations, and the courts have got used to the idea that environmental requirements and environmental damages often amount to sums in the millions.
13.7.4. Penalties in agricultural cases:
The majority of cases involving agricultural businesses concern infringement of the provision of the Environmental Protection Act prohibiting groundwater and surface water pollution with strongly oxygen-demanding substances such as manure slurry, seepage water from silage, liquid manure, etc. A fixed framework for fines has been established by 7 Supreme Court rulings from 1987. They stipulate a standard fine of DKK 5,000 for simple negligence and a discharge not exceeding 1,000 PE. The standard fine takes into account the damages that typically result from such discharges; if special circumstances pertain, however, the fine can be upgraded or downgraded.
In the case of discharges amounting to between 1,000 and 10,000 PE the tendency is for a fine of DKK 10,000. That was the fine imposed in one of the Supreme Court cases. The pollution amounted to 7,000 PE and the discharge was brief: By chance, county officials caught a farmer in the act of pumping rainwater mixed with seepage water from silage from his farmyard to a nearby watercourse.
There is nothing surprising in the fact that the last PE costs less in terms of the fine than the first. This is also how Danish courts react in other circumstances: For example, burglars who have carried out a series of burglaries receive a smaller penalty for the last burglary than the first.
13.7.5. Penalties in consumer cases:
Consumers can also be fined when they breach the environmental requirements that are directed specifically at them. This could be the requirement to seal expired heating oil storage tanks or specific handling of some waste. The fines normally range from DKK 1,000 up to several thousand Danish crowns.
13.7.6. Summary:
From the purely financial point of view it is - despite the increasing penalties - still good business to pay little heed to the Environmental Protection Act.
Real life is not that simple, however. The question of a person’s or an enterprise’s reputation also plays a role.
For a farmer it is undesirable to be convicted of something that is unacceptable to neighbouring colleagues, e.g. watercourse pollution. It is another matter if he is convicted of ignoring the requirements for 2 m wide uncultivated borders alongside the same watercourse, that being something his colleagues would understand.
For a large Danish industrial enterprise with a good name on the market an environmental criminal case is very unpleasant. It can lead to denouncement by the media, affect customers, affect the possibility of recruiting clever young staff, etc. Moreover, for a Danish industrial leader a personal environmental criminal case is a serious minus in his curriculum vitae.
The enterprises that have the least to lose as a result of criminal
environmental cases are those that produce standard goods, and which therefore do not
depend on a good reputation. It is hardly a coincidence that the branches that give rise
to the greatest enforcement problems are fish farms and scrap merchants - small
enterprises that can sell their products irrespective of whether they have an unsettled
score with the environmental authorities.
