Environmental legislation is a special case in this respect, however, and there are a number of special rules on altering decisions. Increased awareness of environmental problems combined with improved technical possibilities for doing something about pollution fuel the desire to see previous decisions tightened.
The EC has committed itself on this question in a number of special Directives on very toxic discharges, the EC’s requirement to Member States being that they must ensure the possibility to revise consents at four-year intervals.
Danish law is based on a different premise, however: One of the conditions set by industry for their acceptance of the 1973 Environmental Protection Act was that once environmental authorization had been given to an enterprise, it was to be given immunity from further environmental requirements so that it had time to depreciate its investment in the production plant. In 1986 this protection was limited to 8 years.
Under the Environmental Protection Act this immunity can be rescinded under special circumstances:
| If new information appears concerning the harmful impact of the pollution. |
| If the pollution causes environmental damage that was unforeseeable at the time of authorization. |
| If the pollution otherwise exceeds that on which issuance of the authorization was based. |
Rescindment on these grounds has taken place less than 10 times since 1974.
Cases arise where it transpires that the enterprise has submitted incorrect information. Sometimes this will be information obtained from a supplier, in which case the enterprise cannot be held responsible. In such cases the immunity is rescinded.
If on the other hand it is the authorities who have made a mistake and stipulated too relaxed consent conditions, then there is not usually anything that can be done about it. However, if the problems for neighbours become so great that the conditions for rescinding the safeguard are met, then the authorities may step in and alter the decision, but have to compensate the enterprise for the mistake made.
For certain branches the immunity period can be reduced to four years, as for example has been stipulated in the Standing Orders implementing EC Directives, and in the rules governing waste incineration plants.
During the immunity period, however, consent conditions can be changed and internal control introduced in order to ensure more appropriate supervision54. Examples of such changes could be to specify the details of requirements, e.g. the measurement period, but without thereby changing the actual limit for the discharge, and changing the internal control requirements or stipulating new internal control requirements.
When the period of immunity has expired, the environmental authority may tighten the requirements if there are environmental grounds for doing so, or if cleaner technology has been developed. The latter includes less polluting raw materials, less polluting production processes and improved treatment measures.
The original idea of the 1986 provision permitting requirements to be revised was that a systematic re-examination of old authorizations should be undertaken. However, the environmental authorities have not the capacity to do that. So far, hardly more than a few hundred authorizations have been reexamined. Some of these concern major discharges, though.
The eight-year immunity period also applies to discharges of trade
effluents, provided that the enterprise also has a consent to discharge effluent directly
to a recipient water56. With all other effluents, however, the environmental authorities
may tighten consent criteria "if an effluent treatment plant does not function in an
environmentally acceptable manner". Thus the Municipalities can at any time impose
tighter requirements on enterprises that discharge trade effluent to the sewerage system,
provided this is justifiable on environmental grounds.
