Environmental law

 

The Danish Act on Contaminated Soil stipulates that as regards contamination occurred after 1 January 1992, the environmental authorities may issue an enforcement notice to investigate the extent of any contamination on the basis of strict liability.

 

Further, the Contaminated Soil Act stipulates that as regards contamination occurred after 1 January 2001, the environmental authorities may issue an enforcement notice requiring remediation of any contamination.

 

If the contamination occurred before 1 January 1992 or 1 January 2001, respectively, the environmental authorities may issue an enforcement notice either to investigate or to remedy the contamination if they can prove that the contamination was caused by the contaminator due to activities giving rise to liability under the rules of tort liability. According to Danish case law, the conduct of the contaminator has to be regarded as negligent based on the standards for good and reasonable conduct which applied at the time of the contamination.

 

Enforcement notices either to investigate or to remedy contamination may be issued regardless of whether the contaminator owns the contaminated property if the contamination occurred after 1 January 2000. If the contamination occurred prior to 1 January 2000, it will be necessary to distinguish between enforcement notices to investigate and enforcement notices to remedy and, in any case, when the contaminator had control of the contaminated property.

 

Enforcement notices may, if certain conditions are fulfilled, be binding on any subsequent operator of the contaminating activity or the buyer of a contaminated site. If the new owner knew or should have known that an enforcement notice had been issued at the time of the acquisition, the new owner will be bound by the enforcement notice.

 

However, please note that the rules described above may be affected by the coming Danish implementation of Directive No 35/2004 of 21 April 2004 on liability with regard to the prevention and remedying of environmental damage.

 

Under the Contaminated Soil Act, an area may be listed as contaminated by the authorities. An area may be listed even if there is only a suspicion of contamination that may have a detrimental effect on human health, the groundwater or the environment. In most cases, registration of a site as contaminated or suspected to be contaminated entails a number of restrictions for the owner, ie if the owner wishes to change the use of the property to sensitive use or wishes to commence construction work. In such cases, the owner must apply for permission prior to the alteration of the use or commencement of the construction work.