3

Contents

CONTENTS 3

FOREWORD 6

ABBREVIATIONS USED 7

1 INTRODUCTION 9 1.1 OBJECTIVE 9 1.2 CORRECT USE OF THE GUIDELINES 10

2 THE ENVIRONMENTAL LIABILITY RULES 13 2.1 THE ENVIRONMENTAL LIABILITY DIRECTIVE 13 2.2 THE DANISH IMPLEMENTATION OF THE ENVIRONMENTAL LIABILITY DIRECTIVE 15

3 DETERMINING WHETHER DAMAGE IS ENVIRONMENTAL DAMAGE 19

3.1 WHAT CHARACTERISES ENVIRONMENTAL DAMAGE - OVERVIEW 19 3.2 THE RULES ABOUT HANDLING THE CASE 19

3.2.1 The environmental liability rules 19 3.2.2 Relationship between the environmental liability rules and environment and nature legislation 21

3.3 ENVIRONMENTAL DAMAGE TO NATURE CAUSED BY ERRORS OR NEGLIGENCE 23 3.4 ABSOLUTE LIABILITY FOR ENVIRONMENTAL DAMAGE TO NATURE, WATER OR LAND 28 3.5 ENVIRONMENTAL DAMAGE WHERE THERE CAN BE PRODUCER LIABILITY33

4 TIME LIMITATION 40 4.1 ONLY ENVIRONMENTAL DAMAGE CAUSED AFTER 1 JULY 2008 40

4.1.1 Particularly with regard to environmental damage to nature 41 4.2 LIMITATION 42

5 OCCUPATIONAL ACTIVITIES 43 5.1 WHAT IS AN OCCUPATIONAL ACTIVITY? 43

5.1.1 The specific evaluation 43 5.1.2 In particular with regard to public activities 44

6 EXCEPTED DAMAGES 46 6.1 DAMAGE EXCEPTED BECAUSE OF THE WAY IT OCCURRED 46

6.1.1 Diffuse pollution. 46 6.1.2 War and civil unrest 47 6.1.3 Radioactive or other ionising radiation or atomic damage 48 6.1.4 Exceptional natural phenomena 48 6.1.5 The state's ships 48 6.1.6 Maritime conventions 48

6.2 DAMAGE WHICH IS APPROVED IN ADVANCE BY THE AUTHORITIES 50 6.2.1 Damage to nature 50 6.2.2 Damage to water 50

4

7 LIABILITY FOR ENVIRONMENTAL DAMAGE 52 7.1 WHO IS LIABLE 52 7.2 ABSOLUTE LIABILITY OR LIABILITY FOR ERRORS AND NEGLIGENCE 53 7.3 ABSOLUTE LIABILITY 54

7.3.1 Modifications of absolute liability 55 7.3.2 Sharing of liability between manufacturer and user 56

7.3.2.1 Pesticides, biocides and GMO as well as trade fertiliser 57 7.3.2.2 Waste for farming purposes 58 7.3.2.3 Livestock manure for farming purposes 58

7.4 ENVIRONMENTAL DAMAGE TO NATURE CAUSED BY ERRORS OR NEGLIGENCE 58

8 ENVIRONMENTAL DAMAGE TO NATURE 60 8.1 ENVIRONMENTAL DAMAGE TO NATURE IN BRIEF 60

8.1.1 Examples of situations where there can be environmental damage to nature 60

8.2 THE PROTECTED SPECIES AND INTERNATIONAL NATURE CONSERVATION AREAS 60

8.2.1 International nature conservation areas 61 8.2.2 Bird species 62 8.2.3 Species mentioned in Annex II of the Habitat Directive and their habitats. 62 8.2.4 Annex IV species and their breeding sites and resting places 63

8.2.4.1 Ecological functionality in breeding sites and resting places 65 8.2.5 Regarding favourable conservation status 65

8.3 INFORMATION ABOUT BASELINE CONDITION 66 8.3.1 Starting point 67 8.3.2 Data for Natura 2000 areas - basic analyses 68

8.4 THE EXTENT AND CHARACTER OF THE DAMAGE 68 8.4.1 Damage to protected nature 69

8.4.1.1 Significant damage? 69 8.4.1.2 The time aspect 70 8.4.1.3 Removal of habitat and fragmentation 70 8.4.1.4 Killing of animal species and excavation of plant species 71 8.4.1.5 Disturbances 71 8.4.1.6 Short and long-term effects and accumulation 71 8.4.1.7 Reversible and irreversible damage 71 8.4.1.8 Cumulative effects 72

8.5 EXAMPLES OF ENVIRONMENTAL DAMAGE 72 8.5.1 Environmental Damage to Natura 2000 areas 72 8.5.2 Damage to Natura 2000 areas containing habitats listed in Annex I of the Habitat Directive 73 8.5.3 Damage to bird species covered 73 8.5.4 Damage to Annex II species 74 8.5.5 Damage to species which are listed in Annex IV of the Habitat Directive74

9 ENVIRONMENTAL DAMAGE TO WATER 75 9.1 ENVIRONMENTAL DAMAGE TO WATER IN BRIEF 75

9.1.1 Examples of situations where there can be environmental damage to water 75

9.2 BODIES OF WATER 76 9.3 INFORMATION ABOUT BASELINE CONDITION 77

9.3.1 Starting point 77 9.3.2 Data 77 9.3.3 The condition of surface water 78

9.3.3.1 Chemical status 79 9.3.3.2 Ecological status 79 9.3.3.3 Ecological status of watercourses 81 9.3.3.4 Ecological status of lakes 81

5

9.3.3.5 Ecological status of coastal waters 81 9.3.4 Status of groundwater 81

9.3.4.1 Quantitative status 82 9.3.4.2 Chemical status 82 9.3.4.3 Influences on wetlands 83

9.4 THE EXTENT AND CHARACTER OF THE DAMAGE 84 9.4.1 Damage to ecological status 84

9.4.1.1 The extent of the damage 84 9.4.1.2 The time aspect 86 9.4.1.3 Damage to watercourses 87 9.4.1.4 Damage to lakes 88 9.4.1.5 Damage to coastal waters 89 9.4.1.6 Damage to ecological potential 89

9.4.2 Damage to the chemical status of surface water 89 9.4.3 Damage to the quantitative status of groundwater 90

9.4.3.1 The extent of the damage 90 9.4.3.2 The size of the water resource - the affected area 92 9.4.3.3 The time aspect 92

9.4.4 Damage to the chemical status of groundwater 92 9.4.4.1 The extent of the damage 93 9.4.4.2 The size of the water resource affected 94 9.4.4.3 The time aspect 95

9.4.5 Simultaneous damage to several types of water 95 10 ENVIRONMENTAL DAMAGE TO LAND 97

10.1 ENVIRONMENTAL DAMAGE TO LAND IN BRIEF 97 10.1.1 Examples of situations where there can be environmental damage to land 98

10.2 THE LAND AS A NATURAL RESOURCE 98 10.3 THE RISK TO HUMAN HEALTH FROM LAND POLLUTION 99 10.4 INFORMATION ABOUT BASELINE CONDITION 100

10.4.1 Starting point 100 10.4.2 Clean land - content of substances 101 10.4.3 Polluted land 102 10.4.4 Area classification - lightly polluted land 103

10.5 THE EXTENT AND CHARACTER OF THE DAMAGE 104 10.5.1 Concentrations of polluting substances 105 10.5.2 Exposure of humans 106 10.5.3 The time aspect 107

11 IN PARTICULAR REGARDING IMMINENT THREAT OF ENVIRONMENTAL DAMAGE 108

11.1 WHEN IS THERE ANY IMMINENT THREAT OF ENVIRONMENTAL DAMAGE?108 11.1.1 The definition of an imminent threat of environmental damage 108 11.1.2 Imminent threat of an adverse effect on the environment or nature109 11.1.3 Imminent threat of environmental damage 110

11.2 MAKING A DECISION AS TO WHETHER AN IMMINENT THREAT OF ENVIRONMENTAL DAMAGE IS PRESENT 111

11.2.1 The case-handling rules in Chapter 3 of the guidelines 111 11.2.2 Special rules for judging imminent threat 111

11.2.2.1 No modification of absolute liability when permission is given 111 11.2.2.2 Cross-border adverse effects 111

12 REFERENCES 112

6

Foreword

These guidelines implement the Minister for the Environment’s commitment to the Danish Parliament's Environment and Regional Planning Committee regarding guidelines about the content of the environmental damage concept which is central to Denmark’s implementation of the EU Environmental Liability Directive. The guidelines are published by the Environmental Protection Agency and the Agency for Spatial and Environmental Planning. Civil engineer Bente Villumsen and biologist Signe Nepper Larsen, both from COWI A/S, have provided the Environmental Protection Agency and the Agency for Spatial and Environmental Planning with assistance in preparing the guidelines. The guidelines have been prepared with assistance from Local Government Den-mark and a number of other affected interest organisations, who have contributed with many suggestions and constructive criticism as part of their participation in a group which has followed the guideline work. The following organisations have participated in the working group: The Danish Bar and Law Society, The Danish Society for Nature Conservation, The Danish Sports Fishing Federation, The Danish Construction Association, Danish Regions, The Confederation of Danish Industry, The Danish Agricultural Council, Danish Agriculture, Danish Ornithological Association, The Danish Forest Association, The Danish Water and Waste Water Association, The Danish Insurance Association, Local Government Denmark, The Oil Industry’s Joint Council, The Danish Agricultural Council, NSOC Denmark and The Danish Shipowners’ Association In addition, a user group consisting of employees in municipalities, state environ-mental centres and the Danish Coastal Authority has very constructively contribut-ed to the work of drawing up the guidelines by examining and commenting on the hearing draft for the guidelines from a user's point of view. The Environmental Protection Agency and the Agency for Spatial and Environ-mental Planning would like to thank everyone involved for their good work and committed endeavours.

7

Abbreviations used

The Bird Protection Directive Council Directive No 79/409/EEC of 2 April 1979 on the conservation of wild birds, as amended

The Groundwater Directive Directive 2006/118/EC of the European

Parliament and of the Council of 12 December 2006 on the protection of groundwater against pollution and deterioration

The Habitat Directive Council Directive 92/43/EEC of 21 May 1992

on the conservation of natural habitats and of wild fauna and flora, as amended

The Environmental Liability Directive Directive 2004/35/CE of the European

Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage

The Water Framework Directive Directive 2000/60/EC of the European

Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy

The Fisheries Act Order No 372 of 26 April 2006 on fishery and

fish breeding, as amended The Marine Environment Act Order No 47 of 7 January 2008 on conservation

of the marine environment, as amended The Harbour Act Act No 326 of 28 May 1999 on harbours, as

amended. The Livestock Approval Act Act No 1572 of 20 January 2006 on

environmental approval, etc. of use of livestock, as amended

The Hunting and Game Administration Act Order No 747 of 21 June 2007 on hunting and

game administration, as amended The Land Pollution Act Order No 282 of 22 March 2007 on pollution of

land, as amended The Coastal Protection Act Order No 243 of 5 April 1994 on coastal

protection, as amended

8

The Environmental and Genetic Technology Act Order No 811 of 21 June 2007 on environmental and genetic technology, as amended

The Environmental Protection Act Order No 1757 of 22 December 2006 on

environmental protection, as amended The Environmental Damage Act Act No 466 of 17 June 2008 on investigation,

prevention and restoration of environmental damage, as amended

The Environmental Objectives Act Order No 1756 of 22 December 2006 on

environmental objectives, etc. for bodies of wa-ter and international nature conservation areas, as amended

The Nature Conservation Act Order No 749 of 21 June 2007 on nature

conservation, as amended The Raw Materials Act Order No 784 of 21 June 2007 on raw materials,

as amended The Forestry Act Order No 793 of 21 June 2007 on forests, as

amended The Tøndermarsken Act Order No 792 of 21 June 2007 on conservation

of the outermost areas of Tøndermarsken, as amended

The Water Supply Act Order No 71 of 17 January 2007 on water

supply, etc., as amended The Watercourse Act Order No 789 of 21 June 2007 on watercourses,

as amended The Order on Conservation of Species Order No 901 of 11 July 2007 on conservation

of certain plant and animal species, etc., trap-ping and trade in game and care of injured game, as amended

The Habitat Order Order No 408 of 1 May 2007 on declaration of

international nature conservation areas and con-servation of certain species, as amended

The Sludge Order Order No 1650 of 13 December 2006 on use of

waste for agriculture, as amended

9

1 Introduction

1.1 Objective

These guidelines should be of assistance with the evaluation and possible determi-nation of whether an adverse effect on the environment or nature is environmental damage or an imminent threat of environmental damage, and the simultaneous evaluation and determination of who is responsible for the damage or threat. The guidelines are therefore addressed to those authorities who have to make deci-sions about environmental damage or imminent threat of the same, i.e. the super-vising authorities according to the environmental and nature law concerned, but also to those who can be responsible for environmental damage or an imminent threat of the same, i.e. those who are responsible for operating public and private sector enterprises and industry, etc. The relevant laws in this regard are

• The Environmental Protection Act • The Land Pollution Act • The Livestock Approval Act • The Environmental and Genetic Technology Act • The Marine Environment Act • The Water Supply Act • The Watercourse Act • The Nature Conservation Act • The Forestry Act • The Hunting and Game Administration Act • The Tøndermarsken Act • The Raw Materials Act • The Fisheries Act • The Coastal Protection and Harbour Acts

It is expected that there will be very few cases a year – in the order of 5 to 15 – where an adverse effect on the environment or nature involves environmental dam-age or an imminent threat of environmental damage. The vast majority of cases where an adverse effect on the environment or nature is identified should therefore still be handled according to the general rules of the laws mentioned above regard-ing restoration of pollution, etc. However, it is the case that almost any occupational activity - in unfortunate cir-cumstances - will be able to cause environmental damage or an imminent threat of such damage. That means that a supervising authority, according to the laws mentioned, in prin-ciple every time an adverse effect on the environment or nature is identified, must consider whether the adverse effect involves environmental damage or an immi-nent threat of environmental damage. As mentioned above, it is however also ex-pected that these considerations will only very rarely lead to a decision having to be taken that there is in fact environmental damage or an imminent threat of such. It is therefore important that the supervising authority clarifies as quickly as possi-

10

ble in dealing with an established adverse effect on the environment or nature whether there can be environmental damage or an imminent threat of environmen-tal damage. A significant objective of the guidelines is therefore also to contribute to avoiding to the greatest extent possible unnecessary resources being used to determine whether an adverse effect could be environmental damage or an imminent threat of such. On that basis, emphasis is placed in the guidelines on defining the concept of envi-ronmental damage as clearly as possible based on the environmental liability legis-lation. Furthermore, the guidelines include a description of how and in what order the various aspects of an adverse effect on the environment or nature can be evalu-ated, so that effects which cannot constitute environmental damage or an imminent threat of such will be “sorted out” as quickly as possible.

1.2 Correct use of the guidelines

These guidelines are not general guidelines about Danish environmental liability rules or the Danish implementation of the Environmental Liability Directive. They are merely guidelines about the concept of environmental damage and about mak-ing decisions about whether environmental damage or imminent threat of such are present, and who is liable for the damage or threat. The guidelines do therefore not include any more precise examination of either the special obligations to take action which fall on the perpetrator when environmental damage has occurred or an imminent threat of such has appeared, or of the special rules which apply to the environmental centres' treatment of environmental damage cases according to the Environmental Damage Act and the orders following from this Act. The guidelines are organised as follows:

- First – in Chapter 2 of the guidelines – there is a short description of the Environmental Liability Directive and the Danish implementation of the Directive.

- Chapter 3 of the guidelines contains an examination of the rules about making decisions about whether an adverse effect on nature or the envi-ronment is environmental damage or an imminent threat of such – and in that context provides suggestions for preparing the evaluation of whether the adverse effect on the environment or nature is environmental damage or an imminent threat of environmental damage.

- Chapters 4 to 7 contain a closer examination of the preconditions for a su-pervising authority or whoever is liable for an adverse effect on nature or the environment, having to consider whether the effect has such a character and such a scope that it constitutes environmental damage or imminent threat of such.

- Chapters 8 to 10 contain an interpretation of the concept of environmental damage insofar as the requirements for the scope and character of the envi-ronmental damage are concerned.

- Chapter 11 is a special chapter about imminent threat of environmental damage.

Note that in Chapters 3 to 10, it has been decided to only write “environmental damage” and not each time in that context to add “or an imminent threat of such”. That the words are not included is simply to simplify the text and improve readabil-ity. These chapters' examination of the relevant criteria for evaluation of whether there is environmental damage is also in principle applicable to the evaluation of

11

whether there is an imminent threat of environmental damage. Where that is not the case, it is specifically mentioned. All users of the guidelines are recommended to read Chapter 2 of the guidelines because that Chapter contains a description of the fundamental principles in the Directive and in their Danish implementation, just as it briefly examines the most significant new concepts in the now applicable Danish environmental liability rules. The Chapter therefore presents the context – the legal framework within which the concept of environmental damage must be interpreted. Chapter 3 of the guidelines contains a description of the environmental liability rules according to which decisions are to be made about environmental damage or imminent threat of such. There are two introductory sections which should be read by all users. An introduc-tory section about the actual concept of environmental damage and a section which examines the rules about how and on what basis decisions are to be made about environmental damage or imminent threat of such. The section further describes the relationship between these environmental liability rules and the other rules about restoration, etc. of adverse effects on the environment and nature in the laws which have been changed as a result of the new environmental liability legislation. In addition, there are three sections with suggestions for planning the evaluation of whether an adverse effect on the environment and nature constitutes environmental damage or an imminent threat of such. The starting point is that only one of the sections will be relevant for the supervising authority and those who are responsi-ble for the adverse effect which can constitute environmental damage or an immi-nent threat of such. Which section should be applied depends on which law regarding the environment and nature the adverse effect is covered by – and thus also on what sort of adverse effect and what activities or facilities are the source of the effect to be evaluated. Section 3.3 should be used when evaluating whether an adverse effect constitutes environmental damage or imminent threat of environmental damage to protected species or international nature conservation areas if the adverse effect is covered by one of the following laws:

• The Nature Conservation Act • The Forestry Act • The Hunting and Game Administration Act • The Tøndermarsken Act • The Raw Materials Act, unless handling of recycling waste has caused the

adverse effect, • The Water Supply Act, unless water extraction has caused the adverse ef-

fect, • The Watercourse Act, unless damming of water has caused the adverse ef-

fect, • The Marine Environment Act, unless the adverse effect is caused by pollu-

tion by emission of substances, transport of dangerous or contaminating goods, handling of dangerous waste or waste handling from or on ships, drilling platforms, etc. or aircraft.

Section 3.4 or – in certain cases section 3.5. - should be used when evaluating whether an adverse effect constitutes environmental damage or imminent threat of

12

environmental damage to protected species or international nature conservation areas, water or land, if the adverse effect is covered by one of the following laws:

• The Environmental Protection Act • The Land Pollution Act • The Livestock Approval Act or • The Environmental and Genetic Technology Act

or if the adverse effect is a result of

• Handling of extraction waste, cf. The Raw Materials Act, Section 33 b, subsection 2,

• Water extraction, including extraction with the intention of diversion or lowering of groundwater, cf. The Water Supply Act Section 68 a, subsec-tion 2,

• Damming of water, cf. The Watercourse Act, Section 60 b, subsection 2, and

• Contamination which is a result of emission of substances, transport of dangerous or contaminating goods, handling of dangerous waste or waste handling from or on ships, drilling platforms, etc. or aircraft, cf. the Marine Environment Act, Section 47 c, subsections 1-3,

It is section 3.4 which is to be used unless the adverse effect is a result of applica-tion of pesticides, biocides, genetically modified organisms or of the use of waste or fertiliser for agricultural purposes – in such case section 3.5 is to be used. Chapters 4 to 7 contain as mentioned above more in-depth descriptions of the pre-conditions for considering whether an adverse effect on nature or the environment has such a character and such a scope that it constitutes environmental damage or imminent threat of such. It concerns the timely application of the environmental liability rules, the understanding of the concept of “occupational activity”, the spe-cial cases which are exceptions to the environmental liability rules’ area of applica-tion and the two types of liability for environmental damage and imminent threat of such, the unconditional liability and the liability for errors and negligence. The interpretation of the concept of environmental damage insofar as the scope and character of the environmental damage are concerned is described in Chapters 8-10. There, a precise examination of what natural resources need to be impacted, how and by how much can be found. It should be emphasised here that this interpretation is based on there being full agreement between the Danish concept of environmental damage and the damage concept in the Environmental Liability Directive. The interpretation is therefore based on the provisions of the Environmental Liability Directive, the Directive's objectives and the Directive in context with other environmen-tal Directives, first and foremost the Habitat and the Water Framework Di-rectives. The interpretation of the concept of damage will in practice be set by the complaint boards and by the courts, including ultimately the EU Court of Justice. Finally, the guidelines include a special Chapter 11 about when it may be assumed that an imminent threat of environmental damage occurring has appeared, and the small number of special rules which apply when deciding that an imminent threat of environmental damage is present.

13

2 The Environmental Liability Rules

2.1 The Environmental Liability Directive

The Environmental Liability Directive was adopted on 21 April 2004, and the deadline for implementing the Directive in EU Member States was set at 30 April 2007. The objective of the Environmental Liability Directive is the prevention and reme-dying of future environmental damage. Environmental damage is significant dam-age to the natural resources of land, water and to protected species and natural hab-itats. The Environmental Liability Directive is based on the well-known ”polluter pays” principle, and sets a common framework for who is responsible for reporting, pre-venting, averting and remedying environmental damage according to public law regulations. The Environmental Liability Directive defines which adverse effects on nature and the environment constitute environmental damage. This environmental damage is defined as: a) environmental damage to protected species and natural habitats that has sig-

nificant adverse affects on reaching or maintaining a favourable conservation status of species or natural habitats which are protected by the Habitat and the Bird Protection Directives,

b) environmental damage to water that significantly adversely affects the ecologi-cal, chemical and/or quantitative status and/or ecological potential of bodies of water covered by the Water Framework Directive,

c) environmental damage to land, which is land contamination that creates a sig-nificant risk of human health being adversely affected.

The rules of the Environmental Liability Directive shall only apply when environ-mental damage or imminent threat of environmental damage has been caused by an occupational activity. The Directive defines occupational activity very broadly as “any activity carried out in the course of an economic activity, a business or an undertaking, irrespectively of its private or public, profit or non-profit character”. According to the Environmental Liability Directive, two different types of liability are fixed for those who are responsible for running occupational activities. Which of the bases for liability is to be applied depends on what activity has caused the environmental damage or the imminent threat of environmental damage. It is an absolute liability for environmental damage and imminent threat of envi-ronmental damage to protected species and habitats, water and land, when it is caused by the operations of occupational activities covered by Annex III of the Directive. The so-called Annex III activities primarily cover polluting activities such as running IPPC companies and companies which handle waste, emission of

Absolute liability Absolute liability entails those re-sponsible for an activity without exception being liable for damage to the environment or nature which results from that activity.

14

substances into water and production, transport, handling and use of pesticides, biocides and dangerous chemical substances. But manufacture, handling, transport and use of genetically modified organisms as well as extraction and damming of water are also covered by Annex III. The absolute liability for environmental damage and imminent threat of such caused by Annex III activities is supplemented by a liability for environmental damage and imminent threat of such to protected species and habitats caused by errors and negligence from any other occupational activity. The Environmental Liability Directive sets special requirements for how environ-mental damage is to be prevented and remedied, and requirements for how the competent authorities in the Member States must deal with cases of environmental damage. When there is an imminent threat of environmental damage, the Directive demands that those liable for the threat must take the necessary preventive measures to avert the damage or limit unavoidable damage as much as possible. However, the Di-rective does not include more precise requirements for what these preventive measures can or must consist of. When environmental damage has occurred, those liable must take remedial measures. In this context, there is a requirement that those liable must prepare a proposal for and undertake investigation and remedying of the environmental dam-age. Annex II of the Directive contains requirements for the remedial measures. The annex includes a set of rules for remedying damage to protected species and habitats and damage to water and another set of rules for remedying land damage. According to Annex II of the Environmental Liability Directive, environmental damage to protected species or habitats and environmental damage to water is to be remedied with primary, complementary and compensatory measures: - The primary measures must restore a natural resource back to its baseline con-

dition, and if this is not possible, the complementary measures must compen-sate for the loss of natural resources which cannot be restored as a result of the primary remediation.

- Furthermore, compensatory measures must compensate for the lack of availa-bility of the natural resources from the time the environmental damage occurs until it is restored.

- The complementary and compensatory measures must consist of further im-provements to the natural resources at the damaged site or, if this is not possi-ble, at another site.

A special method is indicated - a so-called habitat equivalence method - for setting the scope and character of the compensatory measures and any complementary measures. The method indicated is inspired by the American Habitat Equivalency Analysis, HEA, which is used for setting requirements for remedial measures for protected natural resources in the USA. Environmental damage to land must according to the Directive be remedied by removing the risk to human health from using the polluted areas. The risk must be evaluated with regard to the legal use of the areas, i.e. the existing use as well as future use approved by the authorities at the time when the environmental damage occurs. Finally, Annex II of the Directive includes rules about the use of the principle of proportionality and about the considerations that must be taken for determining the

15

remedial measures. These rules are common and must be applied for determining the remedial measures for all environmental damage. The Environmental Liability Directive’s rules about the competent authority's handling of cases of environmental damage and imminent threat of environmental damage cover requirements for authorities ensuring that those responsible for envi-ronmental damage or threats of such provide guarantees for all the costs of preven-tion and remedying, including the costs of the authorities’ handling of the case. The rules also ensure the rights of affected parties and environmental and nature organi-sations to take legal action about environmental damage and to appeal against the decisions of the competent authorities. The Environmental Liability Directive cuts across the hitherto applicable regula-tion of the environment and nature in the EU with these harmonised rules about liability for and obligation of preventing and/or remedying environmental damage.

2.2 The Danish implementation of the Environmental Liability Di-rective

The Environmental Liability Directive should have been implemented in Member States' national legislation three years after the Directive was adopted, i.e. no later than 30 April 2007. However, implementation of the Directive has been delayed in the vast majority of Member States, including Denmark.

The Danish environmental liability rules entered into force on 1 July 2008 and apply to environmental damage or imminent threat of such caused on or after that date. The Danish environmental liability rules now cover:

• Act No 466 of 17 June 2008 on investigation, prevention and remedying of environmental damage, as amended (the Environmental Damage Act).

• Amendments to a number of laws concerning the environment and nature by Act No 507 of 17 June 2008 amending the Environmental Protection Act and various other Acts (implementation of the Environmental Liability Directive).

• The Minister for the Environment's Order No 652 of 26 June 2008 regard-ing certain criteria for evaluation of whether environmental damage has occurred and requirements for remedying certain environmental damage.

• The Minister for the Environment’s Order No 657 of 26 June 2008 on cov-ering the costs for administration and inspection according to the Environ-mental Damage Act.

• The Minister for the Environment’s Order No 658 of 26 June 2008 on ob-taining statements regarding environmental damage, etc.

• The Minister for the Environment's Order No 573 of 18 June 2008 on re-porting in accordance with the Marine Environment Protection Act.

These environmental liability rules will in the course of the summer and late 2008 be supplemented by the Minister for the Environment's Order on provision of guar-antees according to the Environmental Damage Act and the Minister for Food's and the Minister for Transport’s Orders on environmental damage and immediate threat of such according to the Fisheries Act, the Coastal Protection Act and the Harbour Act. The Danish implementation is mostly a minimum implementation.

16

The Environmental Liability Directive's requirements for prevention and remedy-ing of environmental damage are not in all, but in some areas significantly more far-reaching than the requirements for prevention and remedying of adverse effects on the environment and nature, which also result from the Danish laws for envi-ronment and nature. This applies particularly to the requirements for remedying environmental damage to protected species and natural habitats and environmental damage to water as well as the requirements for the handling of environmental damage cases by the authorities, e.g. the requirements for provision of financial guarantees and for covering the costs of case handling by the authorities. As a consequence thereof, the Danish implementation results in the following: Environmental damage is defined in the same way in the Danish environmental liability rules as it is defined in the Environmental Liability Directive; the defini-tions are also to be interpreted in the same way. Environmental damage is defined in Sections 7-9 of the Environmental Damage Act, whereby - Environmental damage to protected species or international nature conservation areas is any damage that has significant adverse effects on reaching or maintaining the favourable conservation status of such species or areas. -Environmental damage to water is any damage that significantly adversely affects the ecological, chemical and/or quantitative status and/or ecological potential of waters covered by the water framework Directive. - Environmental damage to land is any land contamination as a result of direct or indirect introduction of substances, organisms or micro-organisms, in, on or under land and which creates a significant risk of human health being adversely affected. 2) The environmental liability rules will only be applied when environmental dam-age or imminent threat of such has been caused by an occupational activity, and 3) The Environmental Damage Act’s rules regarding prevention and remedying of environmental damage shall only be applied to environmental damage or imminent threat of such and not to other adverse effects on nature or the environment. This means that ensuring that environmental damage or imminent threat of envi-ronmental damage caused by an occupational activity is identified is a crucial ele-ment in the Danish implementation of the Environmental Liability Directive, and that these - and only these - adverse effects on the environment and nature are treated according to the Environmental Damage Act’s rules on prevention and remedying of environmental damage. In Denmark, the effects of occupational activities on the environment and nature are regulated by many different laws, and the Danish environmental liability rules therefore cut across the regulation to date of the protection of the environment and nature, just as the Environmental Liability Directive does. On that basis, the Danish environmental liability rules have been prepared accord-ing to a two-law model: 1. A new Environmental Damage Act that defines the concept of environmental damage and includes rules about how the Minister for the Environment should handle cases once it is decided that there is environmental damage or imminent threat of environmental damage and who is liable for the damage or threat. The Environment Liability Act is supplemented by:

• The Minister for the Environment's Order No 652 of 26 June 2008 regard-ing certain criteria for evaluation of whether environmental damage has occurred and requirements for remedying certain environmental damage.

17

• The Minister for the Environment’s Order No 657 of 26 June 2008 on cov-ering the costs for administration and inspection according to the Environ-mental Damage Act.

• And the forthcoming Order on provision of financial guarantees for the costs of prevention and remedying of environmental damage.

2. The Act amending the Environmental Protection Act and various other Acts has changed the laws on the environment and nature which include the rules applicable hitherto regarding restoration, etc. of adverse effects on the environment and na-ture. The Act includes rules about how and on what basis the supervising authori-ties should make decisions according to the individual environment and nature laws as to whether there is environmental damage or an imminent threat of such and about who is liable for the damage or threat. In other words, it contains the rules about how environmental damage and the imminent threat of such can be “sorted out” from other adverse effects on the environment and nature. It must be emphasised that very few incidences of environmental damage or immi-nent threat of environmental damage (5 to 15 cases per year) are expected to be “sorted out” – and thus the vast majority of cases of adverse effects on nature and the environment should in future be dealt with according to the rules applicable hitherto. There are two sets of rules for this “sorting out” of environmental damage, which is due to the fact that there are also two different bases of liability defined in the Dan-ish environmental liability rules for those who are responsible for occupational activities. Which of the bases of liability is to be applied depends on what activity has caused the environmental damage or the imminent threat of environmental damage. There will therefore be different rules regarding the basis of liability and thus the “sorting out” in the different laws on the environment and nature. An absolute liability for environmental damage and imminent threat of environ-mental damage to nature (protected species and international nature conservation areas), water (bodies of water covered by the Environmental Objectives Act) and land has been set as a result of:

• pollution from land-based activities, • most pollution from ships, drilling platforms and aircraft overflying the

sea, • handling of genetically modified organisms, • handling of extraction waste from raw material gains and • water extraction and damming.

This means that there are rules regarding absolute liability for environmental dam-age and imminent threat of environmental damage to nature, water and land when they are caused by the operations of occupational activities in

• The Environmental Protection Act, • The Land Pollution Act, • The Livestock Approval Act, • The Marine Environment Act, • The Environmental and Genetic Technology Act, • The Raw Materials Act, • The Water Supply Act and • The Watercourse Act.

In the Environmental Protection Act, the Land Pollution Act, the Livestock Ap-proval Act and the Environmental and Genetic Technology Act there are also rules

18

about the sharing of absolute liability between user and producer or importer for environmental damage and imminent threat of such that are caused by application of certain products in connection with occupational activities. For all other effects from occupational activities, there is only liability for envi-ronmental damage or imminent threat of such to nature, and only if the damage or threat is caused by errors or negligence. This means that there are rules regarding this more limited liability for environ-mental damage and imminent threat of environmental damage resulting from irre-sponsible behaviour when running occupational activities in the following laws:

• The Nature Conservation Act • The Forestry Act • The Hunting and Game Administration Act • The Tøndermarsken Act • The Marine Environment Act • The Raw Materials Act • The Water Supply Act • The Watercourse Act

and • in the forthcoming order according to the Fisheries Act.

As shown, the Marine Environment Act, the Water Supply Act, the Watercourse Act and the Raw Materials Act include rules about absolute liability for environ-mental damage or imminent threat of environmental damage to nature, water and land and rules about the more limited liability for environmental damage and im-minent threat of environmental damage as a result of irresponsible behaviour. Which of the rule sets is to be applied depends again on what effect has caused the environmental damage or the imminent threat of environmental damage. In the Marine Environment Act, absolute liability applies for environmental dam-age and imminent threat of such in the case of pollution that is a result of emission of substances, transport of dangerous or polluting goods, handling of dangerous substances or waste handling from or on ships, drilling platforms, etc. or aircraft, cf. the Marine Environment Act, Section 47, subsections 1 -3, e.g. chemical pollu-tion or waste water emissions from ships or platforms or pollution as a result of dredging. In the Water Supply Act, absolute liability applies for water extraction, diversion of groundwater or other lowering of the groundwater level, in the Water-course Act it applies for water extraction and in the Raw Materials Act for handling of recycling waste. These amendments will be supplemented by Orders from the Minister for Food and the Minister for Transport according to the Fisheries Act, the Coastal Protection Act and the Harbour Act. It is noted that the Land Pollution Act’s hitherto applicable rules regarding abso-lute liability for and the obligation to restoration following land pollution go further than the Environmental Liability Directive, with respect to, inter alia, the require-ments for restoration of the damage; however, environmental damage to land is included in the Danish implementation of the Environmental Liability Directive, since special requirements for handling of the case applies to the handling of envi-ronmental damage.

19

3 Determining whether dam-age is environmental damage

3.1 What characterises environmental damage - overview

Environmental damage is characterised by • when it took place, • what activities caused it and how, • what resources it affects, and how and by how much it affects these re-

sources. When determining whether an adverse effect on the environment or nature is envi-ronmental damage that has to be dealt with according to the rules in the Environ-mental Damage Act, it is thus necessary to examine these characteristics more closely. The adverse effect:

• must have taken place within the time frame of application of the environ-mental liability rules,

• must have been caused by an occupational activity, • must not be covered by one of the exceptions to the area of application of

the environmental liability rules, • must have been caused in such a way that the operator of the occupational

activity will be liable for the environmental damage, or such that the envi-ronmental damage affects or is likely to affect another Member State,

• must affect particular protected natural resources – protected species and international nature conservation areas (nature), bodies of water covered by the Environmental Objective Act (water) or land, and

• have documentable significant adverse consequences for the condition of the resource.

3.2 The rules about handling the case

3.2.1 The environmental liability rules

It is the supervising authorities who, according to the environment and nature laws affected, “sort” the environmental damage from the other adverse effects on the environment and nature, which they deal with according to those laws. Each law therefore includes a Chapter with the environmental liability rules that enable this “sorting”. These environmental liability rules can be found in:

• The Environmental Protection Act Chapter 9 a Environmental damage, Section 73 a – 73 i

• The Land Pollution Act, Chapter 4 a Environmental damage, Section 38 a – Section 38 j

20

• The Livestock Approval Act Chapter 5 a Environmental damage, Section 54 a – Section 54 i

• The Environmental and Genetic Technology Act Chapter 3 a Environmen-tal damage, Section 25 a – Section 25 i

• The Marine Environment Act Chapter 14 a Environmental damage, Sec-tion 47 a – Section 47 k

• The Water Supply Act, Chapter 11 a Environmental damage, Section 68 – Section 68 h

• The Watercourse Act, Chapter 11 a Environmental Damage, Section 60 a – Section 60 j

• The Nature Conservation Act, Chapter 11 a Environmental damage, Sec-tion 77 a – Section 77 h

• The Forestry Act, Chapter 8 a Environmental damage, Section 59 a – Sec-tion 59 i

• The Hunting and Game Administration Act, Chapter 8 a Environmental Damage, Sections 53 a – 73 k

• The Tøndermarsken Act, Chapter 9 a Environmental Damage, Section 37 a – Section 37 i

• The Raw Materials Act, Chapter 7 a Environmental Damage, Section 33 a – Section 33 j

The environmental damage chapters cover regulations about:

• Who (which legal entity) can be held responsible for environmental dam-age.

• The responsible party's obligation to inform the supervising authorities about any environmental damage. Note, however, that as far as the Envi-ronmental Protection Act, the Land Pollution Act, the Livestock Approval Act and the Marine Environment Act are concerned, the regulations regard-ing the obligation to report environmental damage cannot be found in the environmental damage chapters, but are integrated into the general rules about obligation to report pollution, etc.

• The responsible party's obligation to avoid any environmental damage or contain the extent of any environmental damage when it is clear that envi-ronmental damage can or will occur.

• Communication of orders to those who have caused an adverse effect on nature or the environment about clarification of any environmental damage and whether there is liability for the damage. These orders can be given to those responsible for the occupational activities which have caused the ad-verse effect, regardless of how the adverse effect has been caused. It is thus irrelevant whether errors or negligence have been shown, whether the ef-fect is due to vandalism, or whether it is in accordance with any permission given. The supervising authority is of course subject to general legal principles, and communication of orders must as such be in accord-ance with the principle of proportionality.

• The supervising authority's decisions about whether there is any environ-mental damage and who is liable for the damage.

• The supervising authority's decisions about whether there is any environ-mental damage which affects or can affect another EU Member State in cases where no decision can be taken about liability for environmental damage.

• Those entitled to complain, i.e. the right of affected parties and authorities as well as of nature and environmental organisations to request the super-vising authority to make a decision about the extent to which there is any environmental damage.

21

The environmental damage chapters in the laws are supplemented by the Minister for the Environment’s Order No 658 of 26 June 2008 regarding procurement of statements about environmental damage, etc. The Order sets out a consulting scheme which entails that when a municipal administration – or a regional council – in its capacity of supervising authority has to make a decision about whether there is any environmental damage and who is responsible for that environmental damage (or, in very few cases, that the environmental damage is cross-border), the municipal administration – or the regional council – must present a draft decision to the local environment centre which must then make a statement on the case. The statement of the environment centre is binding for the municipal administration and the regional council. The consulting scheme is considered to be a temporary scheme. The scheme must be a help to municipal administrations and regional councils in the initial years after the environmental liability rules have come into force. The consulting scheme will be evaluated in the second half of 2009. It must be emphasised that those entitled to complain can complain about all decisions made according to these environmental liability rules. Complaints can also be made about the statements given by the environment centres to municipal administrations and regional councils about draft decisions about environmental damage. In section 3.2.2 there is an overall statement of the relationship between the new environmental damage chapters in the relevant legislation on the environment and nature. In sections 3.3 - 3.5 there is a more precise discussion of how the supervis-ing authorities get clarification of whether the environmental damage chapter should be applied. 3.2.2 Relationship between the environmental liability rules and en-vironment and nature legislation

The environmental liability rules do not entail supervising authorities undertaking more investigative or enquiring supervision than hitherto. As hitherto, the supervis-ing authority must undertake the necessary steps in accordance with the official principle to obtain information in every single case of established or possible ad-verse effect on nature or the environment, such that the authority has the correct basis on which to make its decision. If there is a need to inspect a possible or estab-lished adverse effect, the supervising authority must undertake an inspection, etc. As hitherto, there will also be a specific evaluation of which case-handling steps are necessary and reasonable to obtain sufficient information about a case. In a number of environment and nature Acts, there is an obligation to inform the supervising authority about adverse effects on the environment and nature, and in all Acts there is an obligation to inform the supervising authorities if the adverse effect constitutes environmental damage (or imminent threat of such). The supervising authority can also obtain knowledge about adverse effects on the environment or nature from others who have discovered the pollution, etc., or as a result of its own inspections. In principle, the supervising authority must in every case where it becomes aware of an adverse effect on nature or the environment evaluate whether the adverse effect can constitute environmental damage. The regulations in the environmental

22

damage chapter must therefore be applied instead of the general regulations in the relevant Act regarding remedying of pollution, illegal status changes, etc. If the supervising authority evaluates that the adverse effect cannot constitute envi-ronmental damage, the supervising authority continues its handling of the case according to the general regulations for restoration, etc. in the relevant Act. A sep-arate decision is not made about there not being environmental damage, un-less the supervising authority is requested to make such a decision by a com-pany, person, authority or organisation who is entitled to complain about de-cisions made under the environmental damage chapter of the Act. Note that it is a condition for requesting that the supervising authority makes a decision that those entitled to complain accompany their request with relevant information about the alleged environmental damage. In some cases it will be very simple for the supervising authority to evaluate that the environmental damage chapter is not relevant. That applies in cases where the adverse effect is very trivial, the effect is quite obviously old, or when it is caused by a private activity. Examples of such cases are:

• Small spills of oil or chemicals which are quickly completely removed by the responsible company.

• Cases where a municipal administration passes a land pollution case to the region because the pollution is too old for anyone to be made liable under the Land Pollution Act or the Environmental Protection Act.

• The vast majority of pollution cases from domestic oil tanks where the tank belongs to a private homeowner.

The environmental damage chapter is also not relevant if it is not possible for the supervising authority to clarify how the adverse effect was caused, including whether it was caused by occupational activity. In such cases where it is clear that there cannot be environmental damage, it is not necessary for the supervising authority to document its evaluation of whether the environmental damage chapter should be applied in the case. In other cases where the supervising authority actually has evaluated the question more thoroughly and concluded that the environmental damage chapter was not relevant for the handling of the case, the supervising authority’s considerations and conclusion must be given in the case. For example, this can be in the form of a short memo showing that the supervising authority considers that the pollution or damage was caused prior to 1 July 2008 and that the environmental liability rules cannot therefore be applied in the case. It can also be a longer memo explaining that it was evaluated that the conditions for there being able to be environmental damage are fulfilled, but that the extent and character of the damage do not corre-spond to environmental damage. As mentioned, it is expected that there will be very few cases a year – in the order of 5 to 15 – where an adverse effect on the environment or nature constitutes envi-ronmental damage. In the event of doubt, it can however be very demanding on resources to clarify whether an adverse effect on the environment or nature is of a character or extent which entails the effect being environmental damage. This applies both in relation to the supervising authority and to those responsible for running the occupational activity which has caused the adverse effect. A very uncertain estimate is that there can be in the order of 15 – 30 cases a year where it will be necessary to clarify the

23

extent and character of the adverse effect more precisely in order to be able to judge whether it constitutes environmental damage. As described in Chapter 1, it is therefore important that the supervising authorities clarify according to the relevant nature and environment legislation, and as quickly as possible in the handling of an established adverse effect on the environment or nature, whether the adverse effect can actually constitute environmental damage. In sections 3.3. – 3.5. below there is a more precise statement of how the supervis-ing authorities can obtain clarification about whether the environmental damage chapter should be applied – and if so how.

3.3 Environmental damage to nature caused by errors or negli-gence

This section is applicable to the evaluation of whether an adverse effect constitutes environmental damage to nature, when the adverse effect is regulated by:

• The Nature Conservation Act • The Forestry Act • The Hunting and Game Administration Act • The Tøndermarsken Act • The Raw Materials Act, unless handling of recycling waste has caused the

adverse effect, • The Water Supply Act, unless water extraction, diversion of groundwater

or other lowering of the groundwater level has caused the adverse effect, • The Watercourse Act, unless damming of water has caused the adverse ef-

fect, and • The Marine Environment Act, unless certain types of pollution have

caused the adverse effect • Or the forthcoming Order under the Fisheries Act.

The decision tree below in figure 3.1 illustrates the order of the considerations nec-essary in the suggested planning of the evaluation.

24

Figure 3.1 Liability in the event of errors or negligence The starting point is that an adverse effect on nature or the environment has been established which can lead to a significant effect on international nature conserva-tion areas or protected species. The supervising authority's evaluation can then proceed as follows: 1. The supervising authority evaluates first of all whether the adverse effect is

clearly old. In practice, this means that it is evaluated whether the adverse ef-fect took place or was caused prior to 1 July 2008. Limitation of liability for environmental damage will only become relevant in 30 years’ time.

The time limitation of the adverse effects on the environment and nature which can constitute environmental damage follows from Section 3, Section 7, subsections 3 and 4, and Section 60 of the Environmental Damage Act and are described more precisely in Chapter 4.

25

If the answer is that the supervising authority cannot determine that the adverse effect did not take place or was caused on 1 July 2008 or later, it is no longer rele-vant to consider the application of the environmental liability rules. Handling of the case continues according to the Act under which the supervision is carried out – i.e in exactly the same way as before the environmental liability rules entered into force, unless someone entitled to complain requests decision to be made. In such a case, the supervising authority must make a decision according to the environmen-tal damage chapter of the Act, see for example the Nature Conservation Act, Sec-tion 77 h. The supervising authority can make this decision based on the infor-mation at hand, as it is thus already clear that it is not environmental damage which has to be dealt with according to the Environmental Damage Act, cf. Section 60 of the Environmental Damage Act. If the answer is yes, the supervising authority continues its clarification of whether there is environmental damage. 2. The supervising authority then evaluates whether the adverse effect has been

caused by an occupational activity. Only adverse effects on the environment or nature which are caused by an occupa-tional activity can be environmental damage which is to be dealt with according to the Environmental Damage Act, cf. Section 5 of that Act. The interpretation of “occupational activity” is described further in Chapter 5. If the answer is no, or it is not possible for the supervising authority to evaluate whether the adverse effect stems from an occupational activity, it is no longer rele-vant to consider the application of the environmental liability rules. Handling of the case continues according to the Act under which the supervision is carried out – i.e. in exactly the same way as before the environmental liability rules entered into force, unless someone entitled to complain requests a decision to be made. The same will basically apply if the supervising authority cannot determine that there is a causal relation between the adverse effect and certain occupational activi-ties, that is to say which occupational activities have caused the adverse effect. There is, however, one exception to this. If the adverse effect can affect another EU Member State, the supervising authority must continue its clarification of whether there is any environmental damage. If someone entitled to complain requests decision, the supervising authority must make a decision according to the environmental damage chapter of the Act, see for example the Nature Conservation Act, Section 77 h. The supervising authority can make this decision based on the information at hand, as it is thus already clear that it is not environmental damage which has to be dealt with according to the Envi-ronmental Damage Act, cf. Section 5 of the Environmental Damage Act. If it is clear that the adverse effects have been caused by certain occupational activ-ities, the supervising authority continues its clarification of whether there is any environmental damage. 3. It is then relevant for the supervising authority to evaluate whether the dam-

age has been caused in such a way that it is covered by the exceptions to which adverse effects can constitute environmental damage.

26

These exceptions follow from Section 4, Section 7, subsection 2, and Section 8, subsection 2, of the Environmental Damage Act. The exceptions are described more precisely in Chapter 6. If the adverse effect is covered by one of the exceptions, handling of the case con-tinues according to the Act under which the supervision is carried out – i.e. in ex-actly the same way as before the environmental liability rules entered into force. If the answer is no, but someone entitled to complain requests a decision, the su-pervising authority must make a decision according to the environmental damage chapter of the Act, see for example the Nature Conservation Act, Section 77 h. The supervising authority can make this decision based on the information at hand, as it is thus already clear that it is not environmental damage which has to be dealt with according to the Environmental Damage Act. It cannot be excluded that in very rare cases, situations will occur where there is insufficient basis to judge whether the exceptions are applicable. In such cases, the supervising authority will, according to the regulations in the Act’s environmental damage chapter, be able to order those responsible for the occupational activity to provide information and undertake any investigations, etc. which can shed light on the actual circumstances and thus clarify the cause of the adverse effect. See for example Section 77 c of the Nature Conservation Act. If no exceptions are applicable, the supervising authority continues its clarification of whether there is environmental damage. 4. The supervising authority will then evaluate whether the adverse effect on

nature or the environment is a result of errors or negligence related to the running of the occupational activity.

The liability for any environmental damage to nature as a result of errors or negli-gence is described more precisely in section 7.4. If the answer is no, the supervising authority cannot determine that the adverse effect is a result of errors or negligence, handling of the case continues according to the Act under which the supervision is carried out – i.e. in exactly the same way as before the environmental liability rules entered into force. If someone entitled to complain requests a decision, the supervising authority must make a decision according to the environmental damage chapter of the Act, see for example the Nature Conservation Act, Section 77 h. Decision is made as to wheth-er there is no liability for any environmental damage, and that any possible envi-ronmental damage will therefore not be dealt with under the Environmental Dam-age Act. The relevant provision on liability for environmental damage to nature can be found in the environmental damage chapter of the Act, see for example the Na-ture Conservation Act, Section77 a, subsection 2. If the answer is unclear, the supervising authority can, according to the regulations in the environmental damage chapter, order those responsible for the occupational activity to provide information and undertake any investigations, etc. which can shed light on the actual circumstances and thus clarify the cause of the adverse effect. See for example Section 77 c of the Nature Conservation Act. In the cases where there is an adverse effect on nature or the environment which can affect other EU Member States, but where it is not known which particular occupational activity has caused the adverse effect, the supervising authority must

27

itself take charge of clarifying whether it can be determined that the effect is a con-sequence of errors or negligence. If the answer is yes, the supervising authority continues its clarification of whether there is environmental damage. 5. As an immediate consequence of this, the question arises as to whether any-

one will be able to be held liable for any environmental damage. It can, for example, be impossible to hold anyone liable if those responsible have gone into liquidation or in any other equivalent way been declared bankrupt.

If it is impossible to hold anyone liable, it is no longer relevant to consider whether the adverse effect on nature or the environment constitutes environmental damage, unless this environmental damage can affect another EU Member State. If this is not the case, handling of the case continues according to the Act under which the supervision is carried out – i.e. in exactly the same way as before the environmental liability rules entered into force. If someone entitled to complain in these circumstances requests a decision, decision is made according to the envi-ronmental damage chapter of the Act that is not possible to hold anyone liable, and that any possible environmental damage will therefore not be able to be dealt with according to the Environmental Damage Act. If it is not impossible to hold anyone liable, or the possible environmental damage would be able to affect other EU Member States, the supervising authority contin-ues its clarification of whether there is environmental damage. 6. The supervising authority must then evaluate whether the adverse effect has

such an extent and such a character that it is environmental damage. In Chapter 8, the interpretation of environmental damage to nature is discussed with respect to the requirements of the extent and character of the adverse effect and how this affects the favourable conservation status for protected species and international nature conservation areas. If the answer is no, the adverse effect does not have the character of environmental damage, and no one entitled to make a complaint has requested a decision, han-dling of the case continues according to the Act under which the supervision car-ried out – i.e. in exactly the same way as before the environmental liability rules entered into force. If the answer is no, but someone entitled to request a decision has done so, the su-pervising authority must make a decision according to the environmental damage chapter in the Act, see for example Section 77 c of the Nature Conservation Act. If the answer is unclear, the supervising authority can, according to the regulations in the environmental damage chapter of the Act, order those responsible for the occupational activity to provide information and undertake any investigations, etc. which can shed light on the character and extent of the adverse effect on achieving and maintaining favourable conservation status for the protected species or the international nature conservation areas. See for example Section 77 c of the Nature Conservation Act. In the cases where an adverse effect on nature or the environment can affect other EU Member States, but where no one is or can be made liable for the adverse ef-fect, the supervising authority must itself take charge of clarifying whether it can

28

be determined that the effect is a consequence of errors or negligence. Note that the supervising authority must only evaluate whether the adverse effect is environmen-tal damage, not whether it is an imminent threat of environmental damage. If the answer is (then) yes, a decision is made according to the environmental dam-age chapter of the Act. In such a case, a decision is made either as to whether there is environmental damage and who is liable for that environmental damage, or simply a decision that there is environmental damage that can affect other EU Member States. Note that this decision about cross-border damage is only made in the event of environmental damage, not in the event of imminent threat of envi-ronmental damage. See for example Section 77 e and Section 77 f of the Nature Conservation Act. If the supervising authority is a municipal administration or a regional council, a draft decision about the environmental damage so far shall be presented to the local environment centre under the Ministry of the Environment with the intention that the environment centre gives a binding statement in the case (this consultation scheme is, as previously mentioned, established as a temporary measure).

3.4 Absolute liability for environmental damage to nature, water or land

The “absolute liability” decision tree in figure 3.2 examines the elements in the evaluation of whether adverse effects from occupational activities have caused environmental damage if the adverse effects came about from:

• Handling of extraction waste, cf. The Raw Materials Act, Section 33 b, subsection 2,

• Water extraction, including extraction with the intention of diversion or lowering of groundwater, cf. The Water Supply Act, Section 68 a, subsec-tion 2,

• Damming of water, cf. The Watercourse Act, Section 60 b, subsection 2, and

• Certain types of pollution, etc. from platforms, ships or aircraft, cf. The Marine Environment Act, Section 47 c, subsections 1-3.

or if the adverse effects are regulated by:

• The Environmental Protection Act • The Land Pollution Act • The Livestock Approval Act or • The Environmental and Genetic Technology Act unless the adverse effects are a result of the application of pesticides, biocides, genet-ically modified organisms or use of waste or fertiliser for agricultural purposes – in which case the “producer liability” decision tree is used.

29

Figure 3.2 Absolute liability The starting point is that an adverse effect on nature or the environment has been established, which can lead to a significant effect on international nature conserva-tion areas or protected species or water, or that a not insignificant pollution of land with substances or organisms has been established. The supervising authority's evaluation can then proceed as follows: 1. The supervising authority evaluates first of all whether the adverse effect is

clearly old. In practice, this means evaluating whether the adverse effect took place or was caused prior to 1 July 2008. Limitation of liability for environ-mental damage will only become relevant in 30 years’ time.

The time limitation during which adverse effects on the environment and nature can constitute environmental damage follows from Section 3, Section 7, subsec-

30

tions 3 and 4, and Section 60 of the Environmental Damage Act and is described more precisely in Chapter 4. If the answer is that the supervising authority cannot determine that the adverse effect did not take place or was caused on 1 July 2008 or later, it is no longer rele-vant to consider the application of the environmental liability rules. Handling of the case continues according to the Act under which the supervision is carried out – i.e in exactly the same way as before the environmental liability rules entered into force, unless someone entitled to complain requests a decision to be made. In such a case, the supervising authority must make a decision according to the environmental damage chapter of the Act, see for example the Environmental Protection Act, Section 73 i. The supervising authority can make this decision on the information at hand as it is thus already clear that it is not environmental dam-age which has to be dealt with according to the Environmental Damage Act, cf. Section 60 of the Environmental Damage Act. If the answer is yes, the supervising authority continues its clarification of whether there is environmental damage. 2. The supervising authority then evaluates whether the adverse effect has been

caused by occupational activity. Only adverse effects on the environment or nature which are caused by an occupa-tional activity can be environmental damage which is to be dealt with according to the Environmental Damage Act, cf. Section 5 of that Act. The interpretation of “occupational activity” is described further in Chapter 5. If the answer is no – or it is not possible for the supervising authority to evaluate whether the adverse effect stems from an occupational activity, it is no longer rele-vant to consider the application of the environmental liability rules. Handling of the case continues according to the Act under which the supervision is carried out – i.e. in exactly the same way as before the environmental liability rules entered into force, unless someone entitled to complain requests a decision to be made. The same will basically apply if the supervising authority cannot determine that there is a causal link between the adverse effect and certain occupational activities, that is to say which occupational activities have caused the adverse effect. There is, however, one exception to this. If the adverse effect can affect another EU Member State, the supervising authority must continue its clarification of whether there is any environmental damage. If someone entitled to complain requests a decision, the supervising authority must make a decision according to the environmental damage chapter of the Act, see for example the Environmental Protection Act, Section 73 i. The supervising authority can make this decision on the information at hand as it is thus already clear that it is not environmental damage which has to be dealt with according to the Environ-mental Damage Act, cf. Section 5 of the Environmental Damage Act. If it is clear that the adverse effects have been caused by certain occupational activ-ities, the supervising authority continues its clarification of whether there is a ques-tion of any environmental damage.

31

3. It is then relevant for the supervising authority to evaluate whether the damage has been caused in such a way that it is covered by the exceptions to which ad-verse effects can constitute environmental damage.

These exceptions follow from Section 4, Section 7, subsection 2, and Section 8, subsection 2, of the Environmental Damage Act. The exceptions are described more precisely in Chapter 6. If the adverse effect is covered by one of the exceptions, handling of the case con-tinues according to the Act under which the supervision is carried out – i.e. in ex-actly the same way as before the environmental liability rules entered into force. If the answer is no, but someone entitled to request a decision has done so, an ex-plicit decision must be made about this according to the Act under which the in-spection is carried out. See for example the Environmental Protection Act, Section 73 i. The supervising authority can make this decision based on the information at hand as it is thus already clear that it is not environmental damage which has to be dealt with according to the Environmental Damage Act. It cannot be excluded that in very rare cases, situations will occur where there is insufficient basis to judge whether the exceptions are applicable. In such cases, the supervising authority will, according to the regulations in the Act’s environmental damage chapter, be able to order those responsible for the occupational activity to provide information and undertake any investigations, etc. which can shed light on the actual circumstances and thus clarify the cause of the adverse effect. See for example Section 73 e of the Environmental Protection Act. If no exceptions are applicable, the supervising authority continues its clarification of whether there is environmental damage. 4. The supervising authority will then evaluate whether those responsible for

running the occupational activity have proved that there is no liability for pos-sible environmental damage, because the adverse effect

• stems from following mandatory regulations, • was caused by a third party despite suitable safety measures being taken

or • is the result of an expressly permitted effect, i.e. an expressly permitted

emission or event, and no irresponsible behaviour has been shown. The relevant condition about freedom from liability for environmental damage can be found in the environmental damage chapter, see for example the Environmental Protection Act, Section 73 d. The conditions for there not being any liability for environmental damage are de-scribed more precisely in section 7.3.1. If the answer is yes, freedom from liability is proven, handling of the case contin-ues according to the Act under which the supervision is carried out – i.e. in exactly the same way as before the environmental liability rules entered into force. If the answer is yes, but someone entitled to complain has requested a decision, an explicit decision is made according to the environmental damage chapter of the Act that there is no liability for environmental damage, and that any possible environ-mental damage will therefore not be able to be dealt with according to the Envi-ronmental Damage Act. If the answer is yes, but the adverse effect on nature or the

32

environment can affect other EU Member States, or if the answer is no, the super-vising authority continues its current examination of whether there is a question of environmental damage. 5. As an immediate consequence of this, the question arises as to whether anyone

will be able to be held liable for any environmental damage. It can, for exam-ple, be impossible to hold anyone liable if those responsible have gone into liquidation or in any other equivalent way been declared bankrupt.

If it is impossible to hold anyone liable, it is no longer relevant to consider whether the adverse effect on nature or the environment constitutes environmental damage, unless this environmental damage can affect another EU Member State. If this is not the case, handling of the case continues according to the Act under which the supervision is carried out – i.e. in exactly the same way as before the environmental liability rules entered into force. If someone entitled to complain in these circumstances requests a decision, an explicit decision is made according to the environmental damage chapter of the Act that it is not possible to hold anyone liable, and that any possible environmental damage will therefore not be able to be dealt with according to the Environmental Damage Act. See for example Section 73 i of the Environmental Protection Act. If it is not impossible to hold anyone liable, or the possible environmental damage would be able to affect other EU Member States, the supervising authority contin-ues its clarification of whether there is a question of environmental damage. 6. The supervising authority must then evaluate whether the adverse effect has

such an extent and such a character that it is environmental damage. In Chapter 8, the interpretation of environmental damage to nature is discussed with respect to the requirements of the extent and character of the adverse effect and how this affects the favourable conservation status for the protected species and international nature conservation areas. In Chapter 9, the interpretation of environmental damage to water is discussed with respect to the requirements of the extent and character of the adverse effect and how this affects the quantitative, chemical or ecological status or the ecological potential for bodies of water covered by the Environmental Objectives Act. In Chapter 10, the interpretation of environmental damage to land is discussed as far as the requirements of the extent and character of land pollution are concerned, including what risks these entail for human health. Be aware that an adverse effect on the environment or nature can also entail envi-ronmental damage to several or all of the protected natural resources. The conse-quences of the adverse effect must be evaluated in relation to all relevant resources. For example, land pollution which occurs in Natura 2000 areas and breeding sites or resting places which are protected with regard to the Habitat and Bird Protection Directives (or so close to the areas that the pollution could also affect these areas) must be evaluated with regard to the criteria for environmental damage to land and for environmental damage to nature. Correspondingly, land pollution which can be spread to surface water or groundwater must be evaluated with regard to the crite-ria for environmental damage to land and environmental damage to water. If the answer is no, the adverse effect does not have the character of environmental damage, and no one entitled to make a complaint has requested a decision, han-

33

dling of the case continues according to the Act under which the inspection is car-ried out – i.e. in exactly the same way as before the environmental liability rules entered into force. If the answer is no, but someone entitled to request a decision has done so, an ex-plicit decision must be made about this according to the environmental damage chapter in the Act, see for example Section 73 i of the Environmental Protection Act. If the answer is unclear, the supervising authority can, according to the conditions in the environmental damage chapter, order those responsible for the occupational activity to provide information and undertake any investigations, etc. which can shed light on the character and extent of the adverse effect. See for example Sec-tion 73 e of the Environmental Protection Act. In the cases where an adverse effect on nature or the environment can affect other EU Member States, but where no one is or can be made liable for the adverse ef-fect, the supervising authority must itself take charge of clarifying whether it can be determined that the effect is a consequence of errors or negligence. Note that the supervising authority must only evaluate whether the adverse effect is environmen-tal damage, not whether it is an imminent threat of environmental damage. If the answer is (then) yes, a decision is made according to the environmental dam-age chapter of the Act. In such a case, a decision is made either that there is envi-ronmental damage and who is liable for that environmental damage or simply a decision that there is environmental damage that can affect other EU Member States. Note that this decision about cross-border damage can only be made in the event of environmental damage, not in the event of imminent threat of environmen-tal damage. See for example Section 73 f and Section 73 g of the Environmental Protection Act. If the supervising authority is a municipal administration or a regional council, a draft decision about the environmental damage so far shall be presented to the local environment centre under the Ministry of the Environment with the intention that the environment centre gives a binding statement in the case (as mentioned above this consultation scheme is established as a temporary measure).

3.5 Environmental damage where there can be producer liability

The “producer liability” decision tree in figure 3.3 examines the elements in the evaluation of whether the absolute liability should be shared between producer and user. This decision tree should thus be seen in context with or as a supplement to the “absolute liability” decision tree. This evaluation is done in the cases where the adverse effects are regulated by:

• The Environmental Protection Act • The Land Pollution Act • The Livestock Approval Act or • The Environmental and Genetic Technology Act and are a result of the application of pesticides, biocides, genetically modified or-ganisms or use of waste or fertiliser for agricultural purposes.

34

Figure 3.3 Producer liability The starting point is that an adverse effect on nature or the environment has been established, which can lead to a significant effect on international nature conserva-tion areas or protected species or water, or that a not insignificant pollution of land with substances or organisms has been established. The supervising authority's evaluation can then proceed as follows: 1. The supervising authority evaluates first of all whether the adverse effect is

clearly old. In practice, this means that it is evaluated whether the adverse ef-fect took place or was caused prior to 1 July 2008. Limitation of liability for environmental damage will only become relevant in 30 years’ time.

The time limitation during which adverse effects on the environment and nature can constitute environmental damage follows from Section 3, Section 7, subsec-

35

tions 3 and 4, and Section 60 of the Environmental Damage Act and is described more precisely in Chapter 4. If the answer is that the supervising authority cannot determine that the adverse effect did not take place or was caused on 1 July 2008 or later, it is no longer rele-vant to consider the application of the environmental liability rules. Handling of the case continues according to the Act under which the supervision is carried out – i.e in exactly the same way as before the environmental liability rules entered into force, unless someone entitled to complain requests a decision to be made. In such a case, the supervising authority must make a decision according to the environmental damage chapter of the Act, see for example the Environmental Protection Act, Section 73 i. The supervising authority can make this decision on the information at hand as it is thus already clear that it is not environmental dam-age which has to be dealt with according to the Environmental Damage Act, cf. Section 60 of the Environmental Damage Act. If the answer is yes, the supervising authority continues its clarification of whether there is environmental damage. 2. The supervising authority then evaluates whether the adverse effect has been

caused by occupational activity. Only adverse effects on the environment or nature which are caused by an occupa-tional activity can be environmental damage which is to be dealt with according to the Environmental Damage Act, cf. Section 5 of that Act. The interpretation of “occupational activity” is described further in Chapter 5. If the answer is no – or it is not possible for the supervising authority to evaluate whether the adverse effect stems from an occupational activity, it is no longer rele-vant to consider the application of the environmental liability rules. Handling of the case continues according to the Act under which the supervision is carried out – i.e. in exactly the same way as before the environmental liability rules entered into force, unless someone entitled to complain requests a decision to be made. The same will basically apply if the supervising authority cannot determine that there is a causal relation between the adverse effect and certain occupational activi-ties, that is to say which occupational activities have caused the adverse effect. There is, however, one exception to this. If the adverse effect can affect another EU Member State, the supervising authority must continue its clarification of whether there is any environmental damage. If someone entitled to complain requests a decision, the supervising authority must make a decision according to the environmental damage chapter of the Act, see for example the Environmental Protection Act, Section 73 i. The supervising authority can make this decision on the information at hand as it is thus already clear that it is not environmental damage which has to be dealt with according to the Environ-mental Damage Act, cf. Section 5 of the Environmental Damage Act. If it is clear that the adverse effects have been caused by certain occupational activ-ities, the supervising authority continues its clarification of whether there is a ques-tion of any environmental damage.

36

3. It can then be relevant for the supervising authority to evaluate whether the damage has been caused in such a way that it is covered by the exceptions to which adverse effects can constitute environmental damage.

These exceptions follow from Section 4, Section 7, subsection 2, and Section 8, subsection 2, of the Environmental Damage Act. The exceptions are described more precisely in Chapter 6. If the adverse effect is covered by one of the exceptions, handling of the case con-tinues according to the Act under which the supervision is carried out – i.e. in ex-actly the same way as before the environmental liability rules entered into force. If the answer is no, but someone entitled to request a decision has done so, an ex-plicit decision must be made about this according to the Act under which the in-spection is carried out. See for example the Environmental Protection Act, Section 73 i. The supervising authority can make this decision based on the information at hand as it is thus already clear that it is not environmental damage which has to be dealt with according to the Environmental Damage Act. It cannot be excluded that in very rare cases, situations will occur where there is insufficient basis to judge whether the exceptions are applicable. In such cases, the supervising authority will, according to the regulations in the Act’s environmental damage chapter, be able to order either the user or the producer (or the importer) to provide information and undertake any investigations, etc. which can shed light on the actual circumstances and thus clarify the cause of the adverse effect. See for example Section 73 e of the Environmental Protection Act. The supervising author-ity should, however, prior to communicating such an order as far as possible have clarified whether it may be assumed to be the user or the producer (or the importer) who is seen to be liable for the possible environmental damage, cf. under 4 below. If no exceptions are applicable, the supervising authority continues its clarification of whether there is environmental damage. 4.a. The supervising authority then evaluates whether the user of the product has

proven that the product has been used in accordance with the instructions for use, and that no irresponsible behaviour has been demonstrated with its use.

If the answer is no, the supervising authority continues its clarification of whether there is a question of environmental damage which should be dealt with according to the Environmental Damage Act, see below under 5 and 6. If the answer is yes, the supervising authority evaluates whether the producer (or the importer) is liable if there is environmental damage, see below under 4 b. 4.b. If the user is free of liability, the producer or the importer will be liable if

there is environmental damage. The supervising authority continues its clari-fication of whether there is a question of environmental damage which should be dealt with according to the Environmental Damage Act, see below under 5 and 6.

This applies unless the adverse effect has been caused by application of waste or livestock manure for agricultural purposes, and the producer (or the importer) of waste or livestock manure respectively proves that there was no error with the waste or livestock manure respectively, and that no irresponsible behaviour with the production or import has been shown.

37

If this is the case, handling of the case continues according to the Act under which the supervision is carried out – i.e. in exactly the same way as before the environ-mental liability rules entered into force. If someone entitled to complain in this situation has requested a decision, an explicit decision is made according to the Act under which supervision is carried out that there is no liability for environmental damage, and that possible environmental damage will therefore not have to be dealt with according to the Environmental Damage Act. See for example Section 73 i and Section 73 b, subsection 4, cf. subsection 5 of the Environmental Protection Act. There is one exception to this. In the cases where the producer (the importer) is also free of liability, but where the adverse effect on nature or the environment can affect other EU Member States, the supervising authority continues its clarification of whether there is a question of environmental damage. In section 7.3.2, there is a more precise discussion of the liability of producers (or importers). 5. As an immediate consequence of this, the question arises whether anyone

will be able to be held liable for any environmental damage. It can, for ex-ample, be impossible to hold anyone liable if the user or the producer (or the importer) respectively has gone into liquidation or in any other equivalent way been declared bankrupt.

If it is impossible to hold anyone liable, it is no longer relevant to consider whether the adverse effect on nature or the environment constitutes environmental damage, unless this environmental damage can affect another EU Member State. If this is not the case, handling of the case continues according to the Act under which the inspection is carried out – i.e. in exactly the same way as before the envi-ronmental liability rules entered into force. If someone entitled to complain in these circumstances requests a decision, an explicit decision is made according to the environmental damage chapter of the Act that it is not possible to hold anyone lia-ble, and that any possible environmental damage will therefore not be able to be dealt with according to the Environmental Damage Act. See for example Section 73 i of the Environmental Protection Act. If it is not impossible to hold anyone liable, or the possible environmental damage would be able to affect other EU Member States, the supervising authority contin-ues its clarification of whether there is a question of environmental damage. 6. The supervising authority must then evaluate whether the adverse effect has

such an extent and such a character that it is environmental damage. In Chapter 8, the interpretation of environmental damage to nature is discussed with respect to the requirements of the extent and character of the adverse effect and how this affects the favourable conservation status for the protected species and international nature conservation areas. In Chapter 9, the interpretation of environmental damage to water is discussed with respect to the requirements of the extent and character of the adverse effect and how this affects the quantitative, chemical or ecological status or the ecological potential for bodies of water covered by the Environmental Objectives Act.

38

In Chapter 10, the interpretation of environmental damage to land is discussed with respect to the requirements of the extent and character of the land pollution, includ-ing what risks this entails for human health. If the answer is no, the adverse effect does not have the character of environmental damage, and no one entitled to make a complaint has requested a decision, han-dling of the case continues according to the Act under which the inspection is car-ried out – i.e. in exactly the same way as before the environmental liability rules entered into force. If the answer is no, but someone entitled to request a decision has done so, an ex-plicit decision must be made about this according to the Act under which the in-spection is carried out. See for example Section 73 i of the Environmental Protec-tion Act. Be aware that an adverse effect on the environment or nature can also entail envi-ronmental damage to several or all of the protected natural resources. The conse-quences of the adverse effect must be evaluated in relation to all relevant resources. For example, land pollution which occurs in Natura 2000 areas and breeding sites or resting places which are protected with regard to the Habitat and Bird Protection Directives (or so close to the areas that the pollution could also affect these areas) must be evaluated with regard to the criteria for environmental damage to land and for environmental damage to nature. Correspondingly, land pollution which can be spread to surface water or groundwater must be evaluated with regard to the crite-ria for environmental damage to land and environmental damage to water. If the answer is no, the adverse effect does not have the character of environmental damage, and no one entitled to make a complaint has requested a decision, han-dling of the case continues according to the Act under which the inspection is car-ried out – i.e. in exactly the same way as before the environmental liability rules entered into force. If the answer is no, but someone entitled to request a decision has done so, an ex-plicit decision must be made about this according to the environmental damage chapter in the Act, see for example Section 73 i of the Environmental Protection Act. If the answer is unclear, the supervising authority can, according to the Act under which supervision is carried out, order the user or the producer (or the importer) respectively to provide information and undertake any investigations, etc. which can shed light on the character and extent of the adverse effect. See for example Section 73 e of the Environmental Protection Act. In the cases where an adverse effect on nature or the environment can affect other EU Member States, but where no one is or can be made liable for the adverse ef-fect, the supervising authority must itself take charge of clarifying whether it can be determined that the effect is a consequence of errors or negligence. Note that the supervising authority must only evaluate whether the adverse effect is environmen-tal damage, not whether it is an imminent threat of environmental damage. If the answer is (then) yes, a decision is made according to the environmental dam-age chapter of the Act. In such a case, a decision is made either that there is envi-ronmental damage and who is liable for that environmental damage or simply a decision that there is environmental damage that can affect other EU Member States. Note that this decision about cross-border damage can only be made in the event of environmental damage, not in the event of imminent threat of environmen-

39

tal damage. See for example Section 73 f and Section 73 g of the Environmental Protection Act. If the supervising authority is a municipal administration or a regional council, a draft decision about the environmental damage so far shall be presented to the local environment centre under the Ministry of the Environment with the intention that the environment centre gives a binding statement in the case (as mentioned above this consultation scheme is established as a temporary measure).

40

4 Time limitation

4.1 Only environmental damage caused after 1 July 2008

The environmental liability rules are not enforced retroactively. They only apply to future environmental damage. The environmental damage must therefore have been caused after the act came into force on 1 July 2008. This means that the emission, event or incident which result-ed in an adverse effect on nature or the environment must have taken place after the act came into force for the adverse effect to be able to constitute environmental damage. See figure 4.1 below. Figure 4.1

The environmental liability rules do not apply even though the emission, event or incident which resulted in an adverse effect on nature or the environment took place after 1 July 2008, if the emission, the event or the incident follows on from a particular occupational activity which took place and was completed prior to 1 July 2008. See figure 4.2 below.

1. July 2008

The ad-verse effect from it can be envi-ronmental damage which must be dealt with ac-cording to the Envi-ronmental

Emission, event or incident as a result of occupation-al activity

Occupatio-nal activity

41

Figure 4.2

This means that if the adverse effect was caused prior to 1 July 2008, it is not at all relevant to evaluate whether it can be environmental damage which has to be dealt with according to the Environmental Damage Act. It is not always possible to determine more precisely when an adverse effect on the environment or nature took place and/or was caused. The environmental liability rules do not apply if the effect was not caused by emissions, etc. which occurred as a result of and follow on from occupational activities which were run on 1 July 2008 or later. When evaluating the adverse effects which have occurred over time - passing over the 1 July 2008 time point - the environmental liability rules can only be applied to the (part of the) damage which was caused on 1 July 2008 or later. This means that what happened prior to 1 July 2008 must not be taken into consideration when evaluating whether the adverse effect can be environmental damage. It is only that part of the adverse effect caused on 1 July 2008 or later which must be evaluated in relation to the environmental liability rules. If it is not possible to evaluate how much of an (overall) adverse effect was caused prior to 1 July 2008, and how much after that, the environmental rules cannot be applied. The overall adverse effect must therefore be handled according to the gen-eral rules in the relevant legislation regarding restoration to baseline condition, etc. 4.1.1 Particularly with regard to environmental damage to nature

With regard to environmental damage to nature there are two further exceptions. If an adverse effect on a protected species is inflicted by an emission, event or inci-dent which takes place on 1 July 2008 or later, and which results from a particular occupational activity which took place prior to the species being listed as protected in the Habitat Order, the environmental liability rules do not apply.

Occupatio-nal activity completed

1. July 2008

Adverse effect caused by emission, etc. will regardless of character and extent not have to be dealt with ac-cording to the Envi-ronmental

Emission, event or incident as a result of completed occupation-al activity

42

Similarly, if an adverse effect on an international nature conservation area is in-flicted by an emission, event or incident which takes place on 1 July 2008 or later, but results from a particular occupational activity which had taken place before the area was listed in the Environmental Objective Act, the rules do not apply. See the Environmental Damage Act Section 7, subsections 3 and 4.

4.2 Limitation

Adverse effects on nature or the environment, including environmental damage, can be identified long after the damaging emission, event or incident took place. It follows from Section 3 of the Environmental Damage Act that the Act is not applicable to environmental damage if more than 30 years have passed since the emission, event or incident, which led to the environmental damage, took place. Note that the limitation starts running from the point in time when the critical inci-dent takes place, for example when a drum of chemical waste is buried, and not the time when the chemicals leak from the drum. The limitation will only be relevant on 1 July 2008. See figure 4.3 below. Figure 4.3

1. July 2008

Adverse effect caused by emission, etc. will regardless of charac-ter and extent not have to be dealt with according to the En-i

Emission, event or incident as a result of occupa-tional ac-tivity

More than

Occupatio-nal activity

43

5 Occupational activities

5.1 What is an occupational activity?

In accordance with the Environmental Liability Directive, article 3(10), the envi-ronmental liability rules only apply for environmental damage caused in connec-tion with occupational activities. It follows from the Environmental Damage Act, Section 5, that only when an ad-verse effect on nature or the environment is caused by an occupational activity it can constitute environmental damage which has to be dealt with according to the Environmental Damage Act. An occupational activity must be understood as defined in the Environmental Damage Act, Section 5, subsection 2. According to the Act, an occupational activi-ty is “any activity carried out in the course of an economic activity, a business or an undertaking irrespectively of its private or public, profit or non-profit charac-ter”. The term covers all actual occupational activities. Business undertakings which are subject to approval according to Chapter 5 of the Environmental Protection Act and other business undertakings, including occupa-tional construction work and fixed facilities for energy production which are not subject to approval, all fall under the term occupational. In this context, it must be noted that the fact that an activity such as a shooting range or a motor racing track are subject to approval according to Chapter 5 of the Environmental Protection Act does not in itself entail that the activity must be regarded as an occupational activi-ty according to the environmental liability rules. The term also covers public occupational activity, but not the exercise of public authority. The term does not cover citizens' entirely private activities. Adverse effects on the environment and nature which are caused by citizens' entirely private activities can therefore never be environmental damage. This means, for example, that it is not relevant at all to evaluate whether seepage of oil from a private home oil tank can be characterised as environmental damage. It will often be easy to judge whether an activity is occupational or not. In the event of doubt, a specific and overall evaluation of all relevant conditions connected with the running of the activity must be undertaken. 5.1.1 The specific evaluation

Certain activities will be situated in a grey area, and determining whether the activ-ity is an occupational activity will require a specific evaluation. The purpose of the activity does not as such exclude there being a question of oc-cupational activities. For example, activities which are undertaken for leisure and

44

sport purposes (such as motor sport, riding, shooting galleries, golf courses) can in certain circumstances be assumed to be occupational activities because running them is handled by employed staff, who for example teach, look after animals or maintain the courses. A specific and overall evaluation of all relevant conditions connected with the or-ganisation and running of the activity must be undertaken. The crucial thing is whether the activity is professionalised to an extent which entails the actual run-ning of a business. Conditions which can be included in the evaluation and can point towards there being occupational activity are:

• If prior to the start if the activity, investigations were made into the pro-spect of profitable operations, including making an operating and cash flow budget.

• Profitable/responsible operations can be achieved. • There is an independent financial risk with running the activity. • The owner cannot use the assets of the activity privately. • The owner has relevant specialist education or experience. • VAT is paid. • A fee is paid for participating in the activity. • There are one or more employees for the activity. • The activity is not merely supported by personal interests, such as a hobby

activity. • The company is registered in the company register. • The activity could be sold to a third party. • The handling of the activity as regards tax.

This is not an exhaustive list, and there may be other conditions which are relevant in specific cases. There can, in specific cases, also be conditions which point to-wards business operations of the activity, and conditions which indicate the oppo-site. What is significant is that all the conditions which are relevant to the particular specific cases are included in an overall evaluation. Note that there can be cases where activities which take place in association with a larger undertaking must be regarded as non-occupational even if the undertaking is otherwise driven from a business point of view. This can, for example, be the case when someone who runs a large farming business also has some trotting horses purely as a hobby. 5.1.2 In particular with regard to public activities

All public activities which can be considered equivalent to private occupational activities are covered by the term "occupational activities". These activities cover first and foremost activities of the public sector as property developer and supplier of services. For example, all utility supply activities and public operation of wastewater facilities, water supplies, waste collection schemes, waste incineration facilities and disposal sites are covered. Furthermore, public activities such as teaching, health care, child care, care for the elderly, running museums and thea-tres, etc. are also covered. This means that activities which are undertaken as part of the public sector's work as an authority are not covered. Such work is for example authorities' work with issuing permission according to legislation and the supervision and enforcement of

45

legislation, including for example combating oil and chemical pollution at sea, police work, passing of sentences by courts, etc. and collection of taxes. In these situations, a specific evaluation must also be made - an evaluation of whether the activity is connected to the exercise of authority or whether it is a question of an activity which can be seen as equivalent to private occupational activities, such as public construction work. In this context it must be emphasised that the fact that a public authority gives permission for pollution or another adverse effect which results in environmental damage does not mean that the public authority can be regarded as liable for that environmental damage. According to the environmental liability rules it is only those responsible for run-ning the occupational activity which causes environmental damage who can be regarded as liable for the environmental damage. According to the environmental rules, those responsible for running the occupational activity are those who run or control the occupational activity, i.e. those who have the financial interest in and control over the operation of the activity, including those who have the right or obligation to run the activity (for example supply of certain services by the public sector). That the public authority issues permission for the occupational activities, including the adverse effects of them, does not therefore mean that the public au-thority can be regarded as responsible for the operations of these activities or envi-ronmental damage which results from them. It must be stressed that this does not exclude that the public authority which is-sues illegal permission for the activities which cause environmental damage can be held financially liable for the costs as a consequence of the damage under other rules, for example civil rules regarding liability to pay damages.

46

6 Excepted damages

There are some incidences of damage which should not be dealt with under the Environmental Damage Act even though they are substantial adverse effects on nature, water or land, and even though they were caused by occupational activities within the time frame of application of the environmental liability rules. These exceptions follow from Section 4, Section 7, subsection 2, and Section 8, subsec-tion 2, of the Environmental Damage Act. Some of these incidences of damage are exceptions as a consequence of the way the damage was caused. The exceptions follow from Section 4 of the Environmen-tal Damage Act and are described in section 6.1 below. A number of these incidences of damage are excepted, as they were already ap-proved in advance by the relevant authorities. They are therefore not even consid-ered to be environmental damage. The exceptions follow from Section 7, subsec-tion 2, and Section 8, subsection 2, of the Environmental Damage Act. The excep-tions are described in sections 6.2.1 and 6.2.2 respectively below. If an exception is applicable, an incidence of damage cannot then be dealt with under the Environmental Damage Act, and the supervising authority must and can not make a decision as to whether the adverse effect constitutes environmental damage. The damage is therefore to be dealt with as hitherto according to the rele-vant nature and environment laws.

6.1 Damage excepted because of the way it occurred

It follows from Section 4 of the Environmental Damage Act that the Act is not applicable to environmental damage, if the damage is caused by:

• Diffuse pollution. • War or civil unrest (force majeure). • Activities or events covered by the Euratom Treaty or conventions regard-

ing civil liability for damage caused by the handling of nuclear material. • Natural phenomena of exceptional, inevitable and irresistible character

(force majeure). • Activities from warships and other ships owned or used by a state to the

extent that the ships' activities primarily pertain to defence purposes or in-ternational security or activities the sole purpose of which is to protect from natural disasters.

• Events which are covered by the conventions mentioned in Section 4, sub-section 1, no 6, of the Environmental Damage Act regarding liability for pollution damage at sea - under condition that these conventions have en-tered into force and that they have been ratified and implemented in the Member State.

6.1.1 Diffuse pollution.

Damage as a result of diffuse pollution cannot be environmental damage. Diffuse pollution is pollution where it is not possible to determine the connection between the damage and the actions and omissions of the individual polluter.

47

When there is a question of air pollution and water pollution (surface pollution) which contributes to a long-lasting adverse effect from several (many) sources, there will often be a question of diffuse pollution. Diffuse pollution often occurs due to spreading over a longer time period, dilation and eventual thinning of the source of pollution which typically stems from several sources of pollution. Historical examples of diffuse pollution are pollution of the uppermost layer of soil in urban areas as a result of fallout from pollution caused by traffic, light industry and heating installations, TBT affecting the sea bed in harbour areas as a result of, among other things, intense traffic of ships painted with paint containing TBT and groundwater pollution as a result of different farmers' use of fertiliser and pesti-cides in farming areas over many years. For example, there will be a question of diffuse pollution in those cases where the pollution is due to livestock use where there is a large, indeterminate number of other livestock and possibly other polluters (including foreign polluters) which has contributed to the total pollution, and it is not possible to determine the connection between (parts of) the pollution and the actions of the individual polluter. This follows from the fact that there has to be a causal link between the actions of the polluter and the damage caused. It is evident from Section 4, subsection 1, no 1, of the Environmental Damage Act that there is no question of environmental dam-age when it is not possible to determine the link between the damage and the ac-tions or omissions of the individual polluter. Pollution is thus not diffuse, even though it has been caused by many polluters, as long as it is possible to determine the link between (parts of) the pollution and the actions of the individual polluter. If it is possible to determine which occupational activities have contributed to the pollution which results in environmental damage, all those responsible for these occupational activities will be able to be regarded as jointly liable for the environmental damage. For example, pollution as a result of fertiliser use by several farms will not be diffuse if it is possible to determine the connection between (part of) the pollution and the individual farm. In this context, it must however be noted that if the use of fertiliser may be regarded as expressly permitted, there will be no liability for such pollution, see below in section 7.3.1 for the reason for this freedom from liability. A specific evaluation will always be required to judge to what extent damage is due to diffuse pollution. 6.1.2 War and civil unrest

An adverse effect on the environment and nature which is caused by the conse-quences of war or civil unrest cannot constitute environmental damage. Adverse effects on nature and the environment as a consequence of war will have to be understood broadly. It will not just cover adverse effects from occupational activities which are a consequence of enemy attack - for example pollution as a result of a company's oil or chemical tank being damaged under attack, but also adverse effects resulting from the activities which are initiated as part of the de-fence, or which arise because the war makes it impossible to undertake certain activities. The same may apply for adverse effects on the environment and nature as a result of civil unrest. Civil unrest must here be understood in accordance with the use of

48

the term in environmental and nature legislation and applicable other laws, includ-ing for example in the Land Pollution Act, the Maritime Act, the Insurance Agree-ment Act and the right to compensation. Civil unrest is typically somewhat less extensive than actual civil war or rebellion, but still somewhat more extensive than short periods with simultaneous disturbances at several locations in the country, including for example coordinated illegal and violent demonstrations in several towns or cities. 6.1.3 Radioactive or other ionising radiation or atomic damage

Adverse effects on the environment and nature which are caused by ionising radia-tion or as a result of handling nuclear material can not be environmental damage. As a result of this, Danish legislation on protection of the population and the sur-rounding environment against ionising radiation, including from nuclear material, is not affected by the environmental rules. Furthermore, it follows that if handling of nuclear material leads to subsequent damage which is not radiation damage, but which results from fire, explosions, etc., neither will such adverse effects on the environment and nature be able to constitute environmental damage. 6.1.4 Exceptional natural phenomena

Adverse effects on the environment and nature which are caused by a natural phe-nomenon of exceptional, inevitable and irresistible character can not constitute environmental damage. Natural phenomena of exceptional, inevitable and irresistible character do not just cover actual natural disasters such as typhoons or earthquakes, but also extreme weather incidents such as hurricanes and hurricane-like storms which cause flood-ing and storm damage. 6.1.5 The state's ships

Adverse effects on nature and the environment which are caused by activities from warships and other ships which are owned or used by a state, can not constitute environmental damage if these ships' damaging activities primarily pertain to de-fence purposes or international security or activities the sole purpose of which is to protect from natural disasters. 6.1.6 Maritime conventions

Adverse effects on the environment and nature which occur as a result of incidents covered by certain maritime conventions on liability and compensation for pollu-tion damage cannot be environmental damage. In this context, it is a condition that these conventions have entered into force and been ratified and implemented in the Member State. The maritime conventions are: - The 1992 Liability Convention (the International Convention of 27 November

1992 on Civil Liability for Oil Pollution Damage). - The 1992 Fund Convention (the International Convention of 27 November

1992 on the Establishment of an International Fund for Compensation for Oil Pollution Damage).

49

- The Bunker Convention (the International Convention of 23 March 2001 on Civil Liability for Bunker Oil Pollution Damage).

- The HNS Convention (the International Convention of 3 May 1996 on Liabil-ity and Compensation for Damage in Connection with the Carriage of Hazard-ous and Noxious Substances by Sea).

- All future amendments to these conventions applicable in the relevant Member State.

Until further notice, only the 1992 Liability Convention and the 1992 Fund Con-vention have entered into force and been ratified and implemented in Denmark. The 1992 Liability Convention (also known as the CLC Convention) is an amend-ment protocol to the original convention which is from 1969. The convention co-vers pollution as a consequence of heavy oil which is emptied or leaks from ships constructed as bulk oil carriers and which occurs on land and maritime territory or in the economic zone. It applies regardless of whether it is a question of oil being transported or the ship's own bunker oil. It is a question of objective liability, and the liability can only be directed towards the registered owner of the tanker who must have taken out insurance for the liability. The ship's limit of liability varies according to the size of the ship, but has a maximum of DKK 517 million (as at 26 October 2006). The liability limit can only be broken in special cases. In cases where the polluting ship cannot be identified, did not have an insurance as a result of its (small) size, or where full compensation as a result of the owner's insurance according to the 1992 Liability Convention is not obtained, the Oil Fund and the Supplementary Fund for Oil Pollution Compensation will procure supple-mentary compensation under the 1992 Fund Convention and the 2003 Fund Proto-col (up to DKK 6.4 billion (as at 26 October 2006)). This involves very large pollu-tion accidents also being covered. The 1992 Liability Convention and the 1992 Fund Convention as well as the 2003 Fund Protocol rules are incorporated into Chapter 10 of the Maritime Act. If an incident of oil pollution is covered by these rules, the pollution cannot constitute environmental damage regardless of the extent and character of the pollution. In time, adverse effects on the environment and nature as a result of incidents cov-ered by the Bunker Convention and the HNS Convention will also fall outside the field of application of the environmental liability rules. The Bunker Conventioncovers pollution damage as a result of emptying or leakage of bunker oil - i.e. oil used as fuel for the ship - from ships which are not covered by the Oil Liability Convention. The Bunker Convention similarly includes obliga-tory insurance for the ship's registered owner and objective liability regime. As opposed to the Oil Liability Convention, the Bunker Convention operates with several possible liability subjects, but no fund scheme. Bunker oil in ships which are covered by the 1992 Liability Convention are, as mentioned, covered by the 1992 Liability Convention and not by the Bunker Convention. The rules of the Bunker Convention are incorporated into Chapter 9 aof the Mari-time Act, but the entering into force of these rules awaits the Danish ratification of the Convention, and that it enters into force internationally. The Bunker Conven-tion will enter into force internationally imminently, as the Convention enters into force on 21 November 2008. Danish ratification of the Convention just awaits Eu-ropean Community approval under the Parallel Agreement of 19 October 2005 between Denmark and the European Community on jurisdiction and the recogni-tion and enforcement of judgments in civil and commercial matters.

50

According to theHNS Convention, the ship's registered owner will be made objec-tively liable with maritime transport of HNS substances for pollution and accidents with the dangerous and polluting substances which are covered by the Convention. The ship's owner will also be required to take out obligatory insurance. The Con-vention also covers an HNS fund to pay compensation for HNS damage in Member States in addition to the compensation the damaged party can obtain as a result of the rules about owners' liability when full compensation has not been obtained. The HNS Convention has not yet entered into force, neither has it been ratified by Denmark. It has become apparent that the Convention passed in its 1996 form has not been able to enter into force. A protocol which will clear the way for the con-vention to enter into force is therefore now being prepared.

6.2 Damage which is approved in advance by the authorities

6.2.1 Damage to nature

Damage to nature which is a consequence of a previously identified adverse effect on international nature conservation areas or protected species caused by incidents which are covered by a plan or a project which is expressly approved by an au-thority after evaluation as required in article 6(3) and 6(4) or article 16 in the Habi-tat Directive or article 9 in the Bird Protection Directive, are not regarded as envi-ronmental damage. This follows from Section 7, subsection 2, of the Environmen-tal Damage Act.

Article 6(4), cf. 6(3), and article 16 of the Habitat Directive as well as article 9 of the Bird Protection Directive are exceptions from the general protection rules in the two Directives. They set a very limited access for dispensation from the require-ments of the Directives on protection of species and natural environments, if for example there are “imperative reasons of overriding public interest, including those of a social or economic nature”, or because there is an “absence of alternative solu-tions”.

The Habitat and Bird Protection Directives' exceptions are implemented in Sections

10 and 12 of the Habitat Order, whereby it is possible in very special cases to de-part from the protection requirements (prohibition of significant adverse effects). In this context, it is not sufficient that the authorities have expressly permitted the activities (plans and projects) which caused the damage. The damaging effects of the activity must have been "previously identified", and if they affect Natura 2000 areas, all the necessary compensatory measures must have been taken to maintain the coherence in the Natura 2000 network. This means that significant adverse effects on international nature conservation areas or protected species are not environmental damage if these adverse effects are identified and accepted as consequences of plans or projects, etc., which are cov-ered by permissions according to Section 10 or Section 12 of the Habitat Order. 6.2.2 Damage to water

According to Section 8, subsection 2, of the Environmental Damage Act, a signifi-cant adverse effect on bodies of water is not environmental damage if the adverse effect is a consequence of changes and activities which took place or were under-taken in accordance with Section 17 of the Environmental Objectives Act. When Section 17 of the Environmental Objectives Act is applied, it will be shown in the water plan for the area.

51

According to Section 17 of the Environment Objectives Act, new modifications to the physical characteristics of a body of surface water or alterations to the level of bodies of groundwater can justify that lower objectives than good groundwater status, good ecological status or, where relevant, good ecological potential are specified in the water plan. The modifications can similarly justify failure to pre-vent deterioration of the status of a water body. The application of Section 17 of the Act is conditional upon 1) the damaging impact of the modifications to the status of the body of water

being reduced as much as possible, 2) the reasons for those modifications or alterations being of overriding public

interest or the benefits to the environment and to society of achieving the envi-ronmental objectives being outweighed by the benefits of the new modifica-tions or alterations to human health, to the maintenance of human safety and to sustainable development, and

3) the considerations served by the new modifications or alterations of the water body not being able to, for reasons of technical feasibility or disproportionate cost, be achieved by other means, which are a significantly better environmen-tal option.

If these conditions are fulfilled, new sustainable human development activities can furthermore justify failure to prevent deterioration of the status of a body of surface water from high status to good status. The new modifications or development activities mentioned may not permanently exclude or compromise the achievement of the environmental objectives in other bodies of water in the water district.

52

7 Liability for environmental damage

The absolute main rule is that environmental damage shall be dealt with according to the Environmental Damage Act only when there is someone responsible for that environmental damage. This means that no decision should be made about envi-ronmental damage if no one is responsible for that environmental damage. This applies regardless of the adverse effect on the environment and nature which can otherwise be characterised as environmental damage. There is, however, one single exception to this. If there is environmental damage which affects or can affect another EU Member State, the supervising authority must make a decision about environmental damage regardless of the fact that no decision is made about who is liable for the environmental damage. Note that this only applies in those cases where there is actually environmental damage, not where there is "only" an imminent threat of environmental damage. The starting point is thus that when the supervising authority makes a decision according to the relevant nature and environment law about there being environ-mental damage, the authority also makes a decision about who is liable for that environmental damage.

7.1 Who is liable

Liability for environmental damage lies with the one who is responsible for operat-ing the occupational activity (the operator). According to the environmental rules, those responsible for running the occupa-tional activity are those who run or control the occupational activity, i.e. those who have the financial interest in and control over the operation of the activity, includ-ing those who have the right or obligation to run the activity (for example supply of certain services by the public sector). It is thus the company, i.e. the operator who was in charge of the operation of the occupational activity who is regarded as liable for the environmental damage. It is therefore only the legal entity which runs or ran the occupational activities (the company) which can be regarded as liable for environmental damage. This applies regardless of whether the legal entity is a legal person (for example a share or part-nership company, a foundation or similar) or a natural person, and regardless of whether it is a public or a private occupational activity. An employee will, howev-er, not be able to be regarded as the perpetrator of the damage, regardless of whether that employee has caused the damage in the course of his or her work. The fact of owning a ship, land, buildings or facilities will not in itself be sufficient for being able to be considered as liable for operating the activity. For example, a ship owner who has, as lessor, leased his ship on a bare boat charter basis to anoth-er shipowner as lessee is not liable, it is the lessee who is liable. A mortgagee who takes over a company without continuing to run it will also not be able to be regarded as liable for the operations and thus not be the perpetrator of

53

the damage. The same applies for a lender or other financier purely because of his or her ownership of the lender. For bankruptcy estates, it applies that the estate can only be liable for damage which is caused during any continued operation of the bankrupt company. De-mands by the supervising authorities as a consequence of damage caused prior to bankruptcy, must therefore be made to the estate just as must other demands made prior to bankruptcy. The starting point - that only those liable for the operation can be liable for envi-ronmental damage - is dispensed with when certain products (pesticides, biocides and genetically modified organisms) are used, and when using fertiliser and waste materials for farming purposes. In such cases, the users of products and the manu-facturer or importer can be regarded as liable for environmental damage. This is described more precisely in section 7.3.2. Finally, it must be emphasised once more in this contextthat the fact that a pub-lic authority issues permission for occupational activities, including the adverse effects of them, does not mean that the public authority can be regarded as liable for the operations of these activities or environmental damage which results from them. It must, however, be stressed that this does not exclude the public authority which issues illegal permission for the activities which cause environmental dam-age being able to be held financially liable for the costs as a consequence of the damage under other rules, for example civil rules regarding liability to pay damag-es.

7.2 Absolute liability or liability for errors and negligence

The environmental liability rules set out two different types of liability for those who are responsible for running occupational activities. Which of the bases for liability is to be applied depends on what activity has caused the environmental damage. There are therefore different rules regarding liability for environmental damage in the various laws for the environment and nature. Those who are responsible for the operation of an occupational activity which causes an adverse effect on nature or the environment will therefore either be able to be held absolutely liable for environmental damage to nature, water or land or only liable for environmental damage to nature which is a result of errors or negli-gence. There is absolute liability for environmental damage to nature (protected species and international nature conservation areas), water or land as a result of:

• pollution from land-based activities, • most pollution from ships, drilling platforms and aircraft overflying the

sea, • handling of genetically modified organisms, • handling of extraction waste from raw material gains and • water extraction and damming.

Rules about absolute liability for environmental damage are thus found in the Envi-ronmental Protection Act, the Land Pollution Act, the Livestock Approval Act, the Marine Environment Act, the Environmental and Genetic Technology Act, the Raw Materials Act, the Water Supply Act and the Watercourse Act. This absolute liability is modified, so that the liability lapses under certain circum-stances. Furthermore, absolute liability is shared between the users and manufac-

54

turers or importers in cases of use of certain products. Absolute liability is de-scribed more precisely in section 7.3, modifications to the liability in 7.3.1 and sharing of liability in 7.3.2. Absolute liability for environmental damage to nature, water or land is supple-mented by a liability for environmental damage to nature caused by all other ef-fects of occupational activities. This liability is conditional upon the environmental damage occurring as a result of errors or negligence in connection with the occupa-tional activity. Rules about this liability for environmental damage to nature which occurs as a result of errors or negligence can be found in the Maritime Environment Act, the Raw Materials Act, the Water Supply Act, the Watercourse Act, the Nature Conser-vation Act, the Forestry Act, the Hunting and Game Administration Act and the Tøndermarsken Act. This liability for environmental damage to protected species or natural habitats which occur as a result of errors or negligence is described more precisely in sec-tion 7.4.

7.3 Absolute liability

Absolute liability according to the environmental liability rules is not a full abso-lute liability. A full absolute liability for the effects from the operation of an occupational activi-ty would involve that those who were responsible for the operation of the occupa-tional activities, would also be liable for their adverse effects on the environment and nature without exception. Full absolute liability would apply regardless of whether vandalism to installations caused by third parties was the actual cause of an adverse effect on nature and the environment, or whether the occupational activity and its effects were expressly permitted, for example an expressly permitted pollution. The full absolute liability is thus completely independent of whether those involved acted as correctly and as responsibly as possible. The absolute liability for environmental damage is not a full, but a modified abso-lute liability because those responsible for the operation of the damaging occupa-tional activity would under certain conditions not be liable for environmental dam-age anyway. These conditions for freedom from liability are described below in section 7.3.1. The absolute liability for environmental damage is an expression of the evaluation that the operation of and the effects from certain occupational activities involve such a risk to the environment and nature that those who are responsible for the operation of such occupational activities must, as a starting point, also bear the liability for the environmental damage caused by those operations. The liability thus involves, for example, liability for any accidents which may arise. It must be emphasised that the absolute liability is shared between the users and manufacturers or importers in cases of use of certain products. This applies for the use of pesticides, biocides and genetically modified organisms and for the use of waste or fertiliser for farming purposes. There are rules about this sharing of abso-lute liability in the Environmental Protection Act, the Land Pollution Act, the Live-

55

stock Approval Act and the Environmental and Genetic Technology Act. Sharing of absolute liability is described more precisely in section 7.3.2. 7.3.1 Modifications of absolute liability

According to the Danish environmental liability rules, absolute liability is modified such that there is no liability if environmental damage

• stems from following mandatory regulations, • was caused by a third party despite suitable safety measures being taken

or • is the result of an expressly permitted effect, i.e. an expressly permitted

emission or event, and no irresponsible behaviour has been shown.

It must be emphasised that in all cases it is those responsible for the operation of the occupational activities who must prove that the conditions for freedom from liability are fulfilled. The modifications to absolute liability for damage must not be mistaken for the exceptions from the area of application of the Environmental Damage Act which are described in Chapter 6 of the guidelines. If liability is modified, the supervising authority must make a decision anyway about environmental damage according to the environmental damage chapter in those cases where the adverse effect can af-fect another EU Member State. If the adverse effect is, however, covered by an exception, the environmental liability rules are not applicable at all and the case should be dealt with according to the other applicable rules. Mandatory regulations and third parties There is no liability for environmental damage if environmental damage has oc-curred as a result of meeting mandatory regulations laid down by a public authori-ty. This modification is, however, limited in such a way that it is not applicable if the mandatory regulations are laid down in an order which was a reaction to the operation of the occupational activities by those responsible. An example of damage which has occurred as a result of meeting mandatory regu-lations could be: The supervising authority has given an order to a company ac-cording to the Environmental Protection Act to keep stocks of chemical substances in precisely described barrels together at a particular location in the company. The particular location is immediately adjacent to a machine which stamps metal ele-ments. As a result of the content, design and siting of the stock, it is subject to a lot of heat and sporadic sparks from the machine, so it explodes and causes a fire. Terms and conditions in preservation orders and other orders can also have the character of mandatory regulations. Damage caused by third parties There is no liability for environmental damage if the damage is a result of a third party's actions or negligence, and the company had otherwise established suitable safety precautions. An example of such environmental damage is damage resulting from break-in or vandalism at securely fenced-in and locked areas. Damage as a result of expressly permitted effects If environmental damage results from an emission or event which is expressly permitted, and there is otherwise no irresponsible behaviour shown by the compa-ny, there is no liability for the environmental damage.

56

It is a precondition that there is a question of express permission. Such express permission can be given as a specific permission, but it can also stem directly from environmental and nature legislation. Not all permissions/approvals can fulfil the requirements for an emission or event having to be expressly permitted. Express permission will be a permission where a decision has been made about the quantity and character of the emission, including (where relevant) over what time period the emission may be made (for example the total amount of substance emitted over a month or a year or maximum concentra-tions of the substance in the emissions) - and how and into what resource the emis-sion may occur. This could, for example, concern the emission point from which wastewater may be emitted in relation to a body of surface water, or the number of hectares of farming land over which it should be spread, or similar. As an essential starting point, environmental approval according to Section 33 of the Environmental Protection Act will fulfil these requirements as far as the activi-ties/emissions which the approval covers are concerned, provided that the company has provided the relevant information in its application. Wastewater permission will also, as an essential starting point, meet the requirements for express permis-sion. With respect to operating agreements which the competent authority has entered into with the owner of an agricultural or forestry property - the so-called Natura 2000 agreements - the view is taken that they must have the same legal status in relation to the environmental rules as lack of objection to an activity which is obliged to be reported under either the Nature Conservation Act or the Forestry Act, i.e. that they can be ranked alongside expressly permitted activities. Note that the liability for an imminent threat of environmental damage is not modi-fied in this way. See more about this in Chapter 11 of the guidelines regarding im-minent threat of environmental damage. 7.3.2 Sharing of liability between manufacturer and user

For environmental damage to nature, water or land as a result of the application of pesticides, biocides or genetically modified organisms and of the application of fertiliser or waste substances for farming purposes, rules have been set about shar-ing the absolute liability for damage between the producer (or importer) and the user. In this context, the user is not necessarily the one who actually uses the prod-uct, but the one who is responsible for the occupational activity where the product is used. For example it is those responsible for running the farm who are the users, and not the employee or the agricultural contractor who actually spreads the pesti-cide. If for example environmental damage occurs as a result of an agricultural contrac-tor applying sludge, the farm owner is liable. The farm owner must thus ensure this through the contract with the contractor or subsequently seek compensation under the general legal compensation principles. The sharing of liability means that when using these products correctly, the user will not be liable for environmental damage resulting from use of the products. Use of fertiliser and waste substances for farming purposes is in this context de-fined as any use of fertiliser or waste substances as fertiliser (growth promoting and strengthening) or as a soil improvement agent, regardless of whether this use takes place in commercial farming, forestry or nurseries or elsewhere, for example

57

when operating amusement parks, golf courses or football stadiums. This is in ac-cordance with the interpretation of what the use of waste for farming purposes in the Sludge Order involves. The rules about sharing of absolute liability for environmental damage can be found in the Environmental Protection Act, the Land Pollution Act, the Livestock Approval Act and the Environmental and Genetic Technology Act. The starting point for sharing liability between the manufacturers (or the importers) and the users is that the user is liable for environmental damage unless the user can prove that the product was used legally and responsibly. If the user can do so, the manufacturer (or the importer) bears absolute liability for the environmental dam-age which results from the product characteristics. The supervising authority's evaluation of whether the product was used in accord-ance with the regulations and in a responsible manner must start partly from the information about the character of the alleged environmental damage and partly from the information which the user provides about his use of the product. It is therefore important that the user illustrates and documents his use of the prod-ucts as well as possible. This can be done by providing information about and doc-umenting the purchase and use of the products. Documentation can be receipts, content declaration for the products - test analysis of the product can be considered, fertiliser and spray plans, the company's internal instructions about use of the prod-ucts (if any), statements of stock levels of the products, etc. Furthermore, the user can present his own and any employees' explanations, and explanations from any third parties who have knowledge about use of the products can be taken into con-sideration. In this context, third parties can for example be external environmental verifiers or others who are certified to undertake accreditation of companies' envi-ronmental management and/or quality control. The extent of the manufacturer's (importer's) absolute liability for the characteris-tics of the products depends upon which product is being used. This is described more precisely below. It must be emphasised that as far as liability for the characteristics of the products is concerned, where possible it is the manufacturer who should be held liable. It is the manufacturer who is primarily liable. It is thus only if the Danish manufacturer is not resident in Denmark, i.e. does not have an address in Denmark, that the su-pervising authority should hold the Danish importer liable according to the envi-ronmental liability rules. 7.3.2.1 Pesticides, biocides and GMO as well as trade fertiliser The users of these products are liable for environmental damage which results from the use of these products, unless the products are used according to the regulations and in a responsible manner. The users must prove that use has been in accordance with the regulations and that no irresponsible behaviour has been shown. InSection 73 b, subsection 4, of the Environmental Protection Act, Section 38 b, subsection 4, of the Land Pollution Act and Section 25 d, subsection 4, of the Envi-ronmental and Genetic Technology Act,far-reaching absolute liability for the manu-facturer or importer for environmental damage is set out. This liability for environmental damage involves that the manufacturer/importer is just as liable for environmental damage which results from faults in the product as for environmental damage which may be regarded as development damage, i.e.

58

damage which has occurred as a result of emissions or activities (including use of products) which were not regarded as being able to cause pollution according to the technical and scientific knowledge at the time when the emission or activity took place. This liability for development damage will be able to be applied regardless of whether the effect from the use of the product is in accordance with express permission.

7.3.2.2 Waste for farming purposes The users of waste for farming purposes are liable for environmental damage which results from the use of waste, unless the waste is used according to the regu-lations and in a responsible manner. The users must prove that use has been in ac-cordance with the regulations, and that no irresponsible behaviour has been shown. In Section 73 b, subsection 4, of the Environmental Protection Act and Section 38 b, subsections 4 and 5, of the Land Pollution Act and Section 54 b, subsections 4 and 5, of the Livestock Approval Act, absolute liability is set out for the manufac-turer or importer for environmental damage as a result of product faults if these have occurred when the user has used waste substances for farming purposes ac-cording to the regulations. The manufacturer's or the importer's liability for environmental damage as a result of product faults is set out so that there is liability for environmental damage which results from the waste substances applied not having fulfilled the quality require-ments set, cf. Section 7 in the Order on Application of Waste for Farming Purpos-es, according to which the waste must be in accordance with the limits set for a number of substances and may not contain significant amounts of other environ-mentally damaging substances. There is thus no liability for development damage. 7.3.2.3 Livestock manure for farming purposes The users of livestock manure for farming purposes are liable for environmental damage which results from the use of the manure, unless the manure is used ac-cording to the regulations and in a responsible manner. The users must prove that use has been in accordance with the regulations and that no irresponsible behaviour has been shown. In Section 73 b, subsection 4, of the Environmental Protection Act and Section 38 b, subsections 4 and 5, of the Land Pollution Act and Section 54 b, subsections 4 and 5, of the Livestock Approval Act, absolute liability is set out for the manufac-turer or importer for environmental damage as a result of product faults if these have occurred when the user has used livestock manure for farming purposes ac-cording to the regulations. The manufacturer's or the importer's liability for environmental damage as a result of product faults is set out so that there is liability for environmental damage which results from the livestock manure having contained significant amounts of sub-stances or organisms which do not directly stem from the urine and faeces of the livestock, but which are added to the livestock manure. The manufacturer's or im-porter's liability will apply regardless of how these foreign elements were added to the manure supplied. There is thus no liability for development damage here either.

7.4 Environmental damage to nature caused by errors or negli-gence

The absolute liability described above for environmental damage to nature (pro-tected species and international nature conservation areas), water or land is sup-plemented by a liability for environmental damage to nature caused by all other

59

adverse effects of occupational activities. This liability is conditional upon the en-vironmental damage occurring as a result of errors or negligence in connection with the occupational activity. Rules about this liability for environmental damage to nature which occurs as a result of errors or negligence can be found in the Maritime Environment Act, the Raw Materials Act, the Water Supply Act, the Watercourse Act, the Nature Conser-vation Act, the Forestry Act, the Hunting and Game Administration Act and the Tøndermarsken Act. The liability for environmental damage as a result of errors or negligence thus ap-plies for all the many effects which are not pollution or which stem from handling genetically modified organisms, handling of extraction waste, water extraction or damming. Examples of such effects can be physical changes to nature areas, e.g. destruction of vegetation by digging or ploughing soil, very extensive purifications of watercourses or the use of incorrect fishing equipment. The changes can also consist of new construction or other activities in nature areas which have crucial significance for protected species. In addition, this liability for environmental damage to nature can be applied to cer-tain types of pollution from ships and drilling platforms as well as aircraft overfly-ing the sea. This concerns pollution in the form of noise, thermal pollution and vibrations which do not stem from waste handling, cf. Section 47 c, subsection 4, of the Marine Environment Act. It must be emphasised that in this case there is only liability for - and it therefore should only be evaluated - whether an adverse effect on nature or the environment involves environmental damage to nature. These effects will not be able to lead to environmental damage to water or land. As mentioned above, it is also a condition for the liability for environmental dam-age to nature that there have been errors or negligence in connection with the exer-cise of the occupational activity, and that these errors or negligence have caused the adverse effect. This means that there will not be liability for adverse effects to nature and the envi-ronment, regardless of whether they also have such a character and extent that they could be environmental damage to nature, if the adverse effects are a result of ille-gal activities, for example if the activity results from a lack of authority objection to a notification made or results from an agreement with the authorities about spe-cial operations, or if the activity is a result of an accident. Errors and negligence will thus typically occur in connection with illegal and possibly punishable behav-iour. If it cannot be proved that errors have occurred or negligence has been shown in connection with the operation of the occupational activity, no decision can be made regarding liability for environmental damage to nature according to these rules.

60

8 Environmental damage to nature

8.1 Environmental damage to nature in brief

Section 7 of the Environmental Damage Act sets out what is to be defined as envi-ronmental damage to protected species or international nature conservation areas. Environmental damage to protected species or international nature conservation areas is, according to this, defined as damage that leads to significant adverse ef-fects on reaching or maintaining the favourable conservation status of such species or areas. The effect is evaluated with regard to the baseline condition, cf. Section 16 of the Environmental Damage Act, and the Order on certain criteria for evaluating wheth-er environmental damage is present and on requirements for remedying certain environmental damage. Environmental damage to nature is therefore characterised as follows

• The damage adversely affects protected species or international nature conservation areas. See section 8.2. below regarding this.

• There is a question of a significant adverse effect on reaching or maintain-ing the favourable conservation status of such species or areas. It is a re-quirement that it can be documented that significant adverse effects on the baseline condition have occurred. This is described further in section 8.3.

In this chapter, damage to nature in the form of protected species and international nature conservation areas is examined with regard to the Bird Protection Directive and the Habitat Directive. The Chapter uses a number of technical terms for the ecological status and contexts for nature and refers to a number of central terms in the Danish administration of Natura 2000. Effort is made to explain these along the way, or reference is made to more elaborate explanations in other guidelines, etc. 8.1.1 Examples of situations where there can be environmental dam-age to nature

In the last section, section 8.5 of the Chapter, examples of damage to nature which can be environmental damage are examined.

8.2 The protected species and international nature conservation areas

The species and areas which are protected are: 1. International nature conservation areas mentioned in Annex I of the Habitat

Directive.

61

2. Species covered by article 4(2) of the Bird Protection Directive (regularly re-turning migratory birds in significant numbers) or mentioned in Annex I of the Directive and these species' habitats.

3. Species mentioned in Annex II of the Habitat Directive and their habitats. 4. Species mentioned in Annex IV of the Habitat Directive and their breeding

sites and resting places. Damage to habitats is only covered by the Environmental Damage Act when it occurs within the designated Natura 2000 areas. Damage to species and their habi-tats (for Annex IV species only breeding sites and resting places) is covered by the Environmental Damage Act regardless of where it occurs. From December 2009, for the Danish Natura 2000 areas, there will be Natura 2000 plans which contain a status for the state of species and habitats, objectives for favourable conservation status for the state and plans for endeavours with regard to obtaining favourable conservation status. These plans, revised every sixth year, will in future be an important starting point for evaluating any environmental dam-age. Until the plans are available, environmental damage should be evaluated based on a more general definition of favourable conservation status which is the objec-tive for the Directive and the plans. The protected species and habitats are examined in the sections below. 8.2.1 International nature conservation areas

The Natura 2000 areas make up together with the Ramsar areas the international nature conservation areas and are designated by the Minister of the Environment. The areas are designated in order to protect species and habitats which are particu-larly threatened and/or of significance for overall European biodiversity. For the last 10 years, new Natura 2000 areas have been designated on an ongoing basis. The designated areas are mentioned in the annexes of the Habitat Order. Designa-tion as a Ramsar area is not significant in the context of environmental damage, since the 27 Ramsar areas all lie within or coincide with bird conservation areas. Natura 2000 is a common term for habitat and bird conservation areas. The areas together form an ecological network of protected habitats throughout the whole EU. The objective is to ensure or re-establish favourable conservation status for the species and habitats which the areas are designated to preserve. In Denmark, 16,638 km2 of Natura 2000 areas have been designated, of which 3591 km2 lie on land, corresponding to 8.3% of the total land area of Denmark. The areas are spread across 254 habitats and 113 bird conservation areas. There is a large overlap as many of the areas have the status of both habitat and bird conser-vation areas - with wholly or partly the same boundaries. Read more about the Natura 2000 areas on the website of the Agency for Spatial and Environmental Planning www.blst.dk. All the Natura 2000 areas designated can also be seen on the website of the Agency for Spatial and Environmental Planning, where there are maps for each area and the basis for the designation (the species and habitats the area is designated for) for each area is shown. On the website www.vandognatur.dk,which has been made in connection with water and nature planning with regard to the Environmental Objectives Act, more detailed information can be found about the individual areas, including details of

62

the reasons for designation, to the extent data is available about specific occurrenc-es within the designated area. This information is presented as GIS topics which can be downloaded directly. It is important to be aware that activities in sites in the designated areas where there are no current occurrences of species and habitats, as well as activities on areas outside the designated areas can also affect and possibly damage the species and habitats of the Natura 2000 areas and must be covered by the Environmental Dam-age Act. For the effects of activities outside the designated areas, please refer to the guidelines in the Habitat Order. Parts of a Natura 2000 area do not necessarily themselves contain significant habi-tats for species. These sites can, however, be significant for species in the reasons for the designation with regard to future administration to ensure or re-establish favourable conservation status for species and habitats, for example with nature restoration. If damage occurs which can significantly hinder the possibility for obtaining favourable conservation status, this damage can also be covered by the Environmental Damage Act, cf. Section 7 of the Environmental Damage Act. 8.2.2 Bird species

Species covered by article 4(2) of the Bird Protection Directive (regularly returning migratory birds in significant numbers) or mentioned in Annex I of the Directive and these species' habitats. The Environmental Damage Act covers the bird species which require special con-servation measures with regard to their habitats under the Bird Protection Di-rective, and which are mentioned in Annex I or covered by article 4(2) (regularly returning migratory birds in significant numbers) of the Bird Protection Directive. The Environmental Damage Act also covers damage to these bird species and their habitats outside the designated bird conservation areas, i.e. both inside and outside Natura 2000 areas. The Environmental Damage Act thus differs from the rules which otherwise protect these species, and which only apply with regard to the designated areas. The relevant species in Annex I and regularly returning migratory birds are men-tioned in Annex 10 of the Habitat Order. Danish Annex 1 species are for example breeding birds such as black terns, cranes and ruffs and migratory species such as barnacle geese, common scoters and long-tailed ducks. Examples of regularly returning migratory birds for which bird conservation areas have been designated are mute swans and white-tailed eagles in Roskilde Fjord. There are significant occurrences of both species in the area, and Roskilde Fjord is, together with other bird conservation areas in Denmark, significant for conserving the species in their geographic sea and land areas. 8.2.3 Species mentioned in Annex II of the Habitat Directive and their habitats.

Annex II species are included as part of the reason for designating habitat areas, for example houting in Varde river, otters in the Silkeborg lakes and great crested newts in Kattehale marsh near Allerød. According to the habitat rules, the species and their habitats are protected within the designated areas. Relevant Annex II spe-cies are mentioned in Annex 9 of the Habitat Order.

63

However, the Environmental Damage Act also covers damage to Annex II species outside the designated areas. The species which have been chosen at EU level for designating the areas are spe-cies which are in particular:

• Endangered, vulnerable or rare. • Characteristic. • Species which are only found in small limited areas (endemic species), and

which require special attention because of their special habitats. The Danish Natura 2000 areas are designated to conserve 35 species of mammals, fish, reptiles, amphibians, invertebrates and plants. The fen orchid is an example of an Annex II species. The species, which grows on moist meadows and marshes with chalk soils, is today only found in 10 to 15 loca-tions in East Jutland and on the Danish islands and has diminished drastically - not just in Denmark, but also in Europe as a whole. The species has in particular disap-peared because of the draining of chalk meadows and springs. Overgrowing vege-tation due to lack of extensive farming such as grazing and hay making have also adversely affected the species. A number of habitat areas have therefore been des-ignated to protect the species, including Holmegård marsh and Saltbæk Vig in Zea-land, Urup Dam on Funen and Vandplasken in Northern Jutland. The fen orchid is also mentioned in Annex IV of the Habitat Directive as strongly protected. In relation to environmental damage, an effect which damages the fen orchid's opportunity to obtain favourable conservation status could be described as envi-ronmental damage. An example of a specific threat to the fen orchid which could be described as environmental damage is described more precisely in section 7.5.4 about Annex II species. 8.2.4 Annex IV species and their breeding sites and resting places

Annex IV species (and their breeding sites and resting places) are protected both inside and outside Natura 2000 areas. The Annex IV species do not only restrict themselves to areas one normally associates with nature. Many of the species can use attics, roadsides, railway embankment, temporary water holes, dilapidated buildings and trees with loose bark as breeding sites and resting places. There are therefore numerous activities which do not normally take nature conservation into consideration which can do damage to Annex IV species and their breeding sites and resting places. In Denmark, there are currently 36 animal species and seven plant species which are covered by Annex IV of the Habitat Directive, cf. Annex 11 of the Habitat Or-der. Annex IV species cover for example a number of different amphibian and reptile species, particular species of orchid, all types of bats and species of insects, fish and mammals. The Annex IV species are for example sand lizard, moor frog, common dormouse and thick-shelled river mussel. Certain Annex II species can also be covered by Annex IV protection, e.g. otter and great crested newt. Annex IV plant species must not be picked, collected, cut, uprooted or destroyed in nature, cf. Section 5 of the Order on Conservation of Species and Section 11 in the Habitat Order. The prohibitions apply to all stages of the biological cycle of the plants covered. Annex IV animal species are protected against deliberate trapping or killing of individual animals of the species in nature, cf. the Order on Conservation of Spe-

64

cies. Under these rules it is also prohibited to deliberately destroy or collect eggs of Annex IV species in nature. The protection also entails plans and projects being evaluated in order to avoid damaging or destroying breeding sites and resting places of the species, regardless of whether they occur in or outside the specially designated Natura 2000 areas, cf. Section 11 of the Habitat Order. One example of an Annex IV species is the sand lizard which can be found all over the country, although it is more common near coasts. The sand lizard lives in open areas with loose, preferably sandy soil, where it can often be found in small colo-nies. The species hibernates until April on sites such as south-facing embankments. These resting places can be found in numerous locations around the country in the form of for example railway and road embankments, commons protected under Section 3, beach slopes and recreational areas such as parks and sports facilities as well as on gravel roads and raw material pits.

Figure 8.1 Sand lizard - nesting female in loose gravel on a railway em-bankment between Lejre and Vipperød. Photograph: Martin Vestergaard. More information about Annex IV animal species' distribution, biology and signifi-cance in administration and planning can be found in the reports on the subject prepared by the National Environmental Research Institute. (http://www2.dmu.dk/Pub/FR635.pdf). When having to evaluate whether a location is a breeding site or resting place in connection with environmental damage, it is necessary to look at the location's ecological functionality with respect to the requirements of the species and the affected populations.

65

8.2.4.1 Ecological functionality in breeding sites and resting places A breeding site can be defined as the place where the individuals of the species have their breeding territories or their eggs and young until the young can look after themselves. A resting place is defined as the place where the individuals of the species stay when they are not looking for food or breeding. This can be different locations depending on whether it is summer or winter. Ecological functionality means the conditions which a breeding site and resting place can offer a population of the species being examined more closely. It is not enough to evaluate damage to, for example, a breeding site - damage to the places where the species nests is also important. An example of this could be amphibians' use of several waterholes as a breeding site and resting place, see figure 8.2 below.

Figure 8.2 Explanation of ecological functionality for a population of am-phibians and a number of waterholes. The ecological functionality is to preserve the pattern of breeding sites and resting places which the species in the example shown, the moor frog, is dependent on. For a more precise elaboration of the term ecological functionality, see the guidelines for the Habitat Order. 8.2.5 Regarding favourable conservation status

Environmental damage to nature must be evaluated in relation to whether favourable conservation status is damaged or the obtaining of favourable conservation status is hindered.

66

Favourable conservation status is more precisely defined in the Habitat Di-rective and is mentioned in Section 4 i of the Habitat Order which is repro-duced in the box below. Definitions of favourable conservation status § 4. The conservation objective for Natura 2000 areas is to ensure or re-establish favourable conservation status for the species and habitats which the areas are designated to preserve. For Ramsar areas, the objective is to promote conservation. Section 2. Natura 2000 areas are designated in order to preserve habitats and spe-cies native to Denmark which are included in the Habitat Directive, Annex I and II, and the Bird Protection Directive, Annex I, as well as regularly returning migratory birds and occurrences which are relevant as a result of article 4(2) of the Bird Protec-tion Directive. Section 3. Definition of terms in this Order: a) The conservation status of a habitat: The sum of the influences acting on a natu-ral habitat and its typical species that may affect its long-term natural distribution, structure and functions as well as the long-term survival of its typical species. b) A habitat's favourable conservation status: The conservation status of a natural habitat will be taken as "favourable" when: 1) its natural range and areas it covers within that range are stable or increasing, 2) the specific structure and functions which are necessary for its long-term mainte-nance exist and are likely to continue to exist for the foreseeable future, and 3) the conservation status of its typical species is favourable as defined in (d). c) The conservation status of a species: The sum of the influences acting on the spe-cies concerned that may affect the long-term distribution and abundance of its populations. d) The favourable conservation status of a species: The conservation status of a species will be taken as "favourable" when: 1) population dynamics data on the species concerned indicate that it is maintain-ing itself on a long-term basis as a viable component of its natural habitats, 2) the natural range of the species is neither being reduced nor is likely to be re-duced for the foreseeable future, and 3) there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis. These general definitions, found in The National Environmental Research Insti-tute's criteria for favourable conservation status, have been sought to be converted to specific operational criteria. In the absence of specific objectives for the status of species and habitats in Natura 2000 areas, the criteria can be used as a starting point to evaluate any environmental damage. Criteria for favourable conservation status for the different species and habitats in Denmark can be found in various publications of the National Environmental Research Institute http://www2.dmu.dk/1_viden/2_Publikationer/3_fagrapporter/rapporter/FR457_2udg_www.pdf).

8.3 Information about baseline condition

Damage to conservation status must be evaluated for the designated areas in rela-tion to the specific occurrence or population which is affected - i.e. locally. It may point towards environmental damage if the damage has an extent such that it can also be significant nationally, e.g. in the case of damage to very rare species. The same applies for damage to breeding sites and resting places for Annex IV species. For those species for which the Environmental Damage Act also applies outside the designated areas (except for Annex IV species), damage must be evaluated in rela-

67

tion to the regional conservation status (rare and scarce species) and the national conservation status (abundant species). 8.3.1 Starting point

Under the Order on certain criteria for evaluating whether there is environmental damage and whether there is a requirement for remedying certain environmental damage, the extent of damage which leads to an adverse effect on obtaining or maintaining a favourable conservation status for protected species or international nature conservation areas is to be evaluated with regard to the conservation status and status at that point in time when the damage occurs, their recreative value and their natural regeneration ability. Requirements are therefore placed on documenta-tion of both the baseline condition and the current status.

• Baseline condition - the starting point for an evaluation of whether there has been environmental damage to protected nature, or the condition the nature was in at the time the damage occurred - and not an assumed unaf-fected (unpolluted or undisturbed) condition.

• Current condition - the condition of the protected nature after the damage

has occurred. The order also sets out that the following measurable data must be included when determining significant adverse effects with regard to the baseline condition: a) The number of individuals, their density or the area covered. b) The role of the particular individuals or of the damaged area in relation to the

species or to the habitat conservation, the rarity of the species or habitat (as-sessed at local, regional and higher level including at Community level).

c) The species' capacity for propagation (according to the dynamics specific to that species or to that population), its viability or the habitat's capacity for natu-ral regeneration (according to the dynamics specific to its characteristic species or to their populations).

d) The species' or habitat's capacity, after damage has occurred, to recover within a short time, without any intervention other than increased protection measures, to a condition which leads, solely by virtue of the dynamics of the species or habitat, to a condition deemed equivalent or superior to the baseline condition.

Documentation of damage to nature is not always straightforward. It is easy to define the boundaries of a Natura 2000 area - there are maps of the designated areas, and the boundaries are often defined by land plot boundaries, streets or municipal boundaries which can be recognised in the landscape. Habitats can, as a rule, also be identified - a list of typical species together with a description of terrain, soil, water level and operations gives the information needed to identify the habitats which make up the basis for the designation. Localisation of the species can be more difficult, regardless of whether they are inside or outside the Natura 2000 areas. One may know that the species can be found in an area, but they may be shy and show themselves very seldom. One can also become aware of damage to a site at a bad time of the year, e.g. when having to document the baseline condition in the middle of winter. At that point in time, the species have either gone into hibernation or left for their winter quarters - or disappeared completely because of the environmental damage. In particular, docu-

68

mentation of breeding sites and resting places for Annex IV species can be a chal-lenge. In order to be able to evaluate the extent of damage and the effect on protected habitats or species in a Natura 2000 area, one needs to have an insight into what the status is, and where the status is in relation to the objective of favourable conserva-tion status. Knowledge is being built up for the Natura 2000 areas with the current nature planning according to the Environmental Objectives Act, and it will be updated for nature planning on an ongoing basis. In the basic analyses for the individual Natura 2000 areas, known information about the condition of nature and current threats can be found. It will, however, always be the applicable condition which must be used as the basis for evaluating the extent of environmental damage, and it can be necessary to supplement the basic analyses with other knowledge. For the generally protected species, it applies that for some species there has been long-term monitoring of population development and fluctuations, etc., but this does not apply to all the protected species. 8.3.2 Data for Natura 2000 areas - basic analyses

From 2004 to 2006, the counties prepared basic analyses for all Natura 2000 areas outside forests. The basic analyses included the 18 open space habitats which the NOVANA programme covered. For Natura 2000 areas with forests subject to con-servation, the analysis was prepared by the respective centres for each part of the country in 2007. The basic analyses built partly on existing knowledge, but first and foremost on the surveys that were undertaken in connection with NOVANA. The surveys were undertaken in all the designated Natura 2000 areas in the country. When the basic analyses were complete, the status in the Natura 2000 areas was evaluated based on field data from the surveys. This information is today available on the www.vandognatur.dk website which is part of the Danish Nature and Envi-ronment Portal under the Ministry of the Environment. The website is currently under development, and new data is added on an ongoing basis. Information about designated Natura 2000 areas, boundaries and the reasons for designation can be found on the website of the Agency for Spatial and Environ-mental Planning (www.blst.dk). In addition, Nature Data Denmark under the Dan-ish Nature and Environmental Portal (www.miljoeportal.dk) is already, and will continue to be, an important source of information about the range and population development of animals, plants and habitats in Denmark. Data for this is provided today by (among others) municipalities and the Ministry of the Environment's envi-ronment centres, but in time it is also expected that data supplied by private indi-viduals can be entered. Finally, there is a lot of information to find from green or-ganisations who survey animals and plants on a voluntary basis.

8.4 The extent and character of the damage

Significant damage to nature is any damage that has significant adverse effects on the potential for reaching or maintaining the favourable conservation status of pro-tected species or areas, including

69

• reduced potential for a species or a habitat in the basis for designation of a Natura 2000 area obtaining or maintaining favourable conservation status in the area within a foreseeable time period, or

• reduced potential for a species or a habitat in the basis for designation of a Natura 2000 area obtaining or maintaining national favourable conserva-tion status in the area within a foreseeable time period.

• reduced potential for obtaining or maintaining national favourable conser-vation status for the protected species as a result of adverse effects on the species and/or the ecological functionality of the species' habitats, includ-ing breeding sites and resting places for Annex IV species, both within and outside the designated areas.

The Order on certain criteria for evaluating whether there is environmental damage and on requirements for remedying certain environmental damage also sets out that damage to protected species and (or) international nature conservation areas, whose effect on human health is documented, is significant. The following damage to nature does not, however, have to be classified as signifi-cant damage according to the Order: a) Negative variations in population size that are smaller than natural fluctuations

regarded as normal for the species or habitat in question. b) Negative variations in population size due to natural causes or resulting from

intervention relating to the normal management of sites, as defined in habitat records or target documents or as carried on previously by owners or operators.

c) Damage to populations of protected species or international nature conserva-tion areas for which it is established that they will recover, within a short time and without intervention, either to the baseline condition or to a condition which leads, solely by virtue of the dynamics of the species or habitat, to a condition deemed equivalent or superior to the baseline condition.

In relation to the term "normalt management of sites" mentioned in point b, this means operations which have hitherto been practised in the area. There is, howev-er, no unambiguous definition of what is covered by this, but it is evaluated for example to be associated with normal agricultural and forest operations which do not require prior permission or the like. Based on the principle of proportionality, it may be determined that significant damage must have such a character, extent and a public interest for those other than those immediately affected, that it is reasonable in relation to the Environmental Damage Act's requirements for environmental centres' handling of environmental damage, including especially the requirements for complementary and compensa-tory measures for remedying damage to protected species and habitats. 8.4.1 Damage to protected nature

Damage to protected nature can have different characteristics according to which species and habitat it affects, to what extent the damage gives short or long term effects, whether the damage has built up over time, and whether the damage can be evaluated as reversible or not in relation to achieving or maintaining favourable conservation status. 8.4.1.1 Significant damage? For an effect on protected nature to be able to be categorised as environmental damage, the effect must lead to significant damage. It is thus not all situations af-fecting nature adversely which lead to environmental damage in the sense of the

70

Environmental Damage Act. There is, for example, not necessarily a connection between a breach of applicable rules which leads to an adverse effect on the envi-ronment, and the rules about environmental damage. It can be difficult to judge how much has to happen before there is a question of significant damage. Can damage to an individual or a habitat in an area be classed as environmental damage? The damage must be evaluated in relation to the current condition or the potential for achieving favourable conservation status or the objectives for the condition of the natural environment which may be set for the species. The population must be stable or rising. One dead otter in a small population can be more problematic in one Natura 2000 area than 10 dead otters in a well-functioning large population in another Natura 2000 area. Some habitats are more sensitive to effects. This is, among other things, due to the fact that some species have very specific demands to habitats and also have slow rates of growth or long reproduction periods and perhaps only a few young. Habitats with plant species which grow slowly, such as gravel dunes with lichens that take several decades to grow, is sensitive to digging and to comings and go-ings. The same applies for animals with a small radius of activity. If their habitat is taken away, it is less likely that they will be able to find new suitable biotopes nearby. On the way to new potential habitats, the animal will be subject to for example preda-tors and disturbances from humans, etc. For animals and birds which can flee quickly if their habitat is destroyed, there are better opportunities to find suitable habitats. 8.4.1.2 The time aspect Damage to nature which has been overcome before the authorities can manage to react to it, will in itself not constitute environmental damage in the sense of the Environmental Damage Act. Neither is damage which restores itself within a short time environmental damage, as it cannot be said to be significant. Generally it can be evaluated that it is a ques-tion of a short time if the natural restoration of the condition of the natural envi-ronment occurs within approximately one year. Furthermore, for environmental damage to nature one will not always be able to determine that the damage actually affects nature. The effects may only be seen later on. Similarly, the effect of damage can be very long-term, even though it im-mediately appears just to be minor damage. It depends on the robustness of the species or the habitat, i.e. the ability to "recover" after damage. A rule of thumb can be that large abundances of species and habitats will be able to be re-established faster than small ones. 8.4.1.3 Removal of habitat and fragmentation An occupational activity which directly removes protected nature will, as a starting point, always have to be classified as damage provided that it is a question about sites which have significant value as habitats or with significant abundances of habitats, and no permit has been given for the activity, cf. the introduction to this chapter. Excavation and cultivation of protected habitats where the area removed is so large that nature is split up (fragmentation), will have to be regarded as damage, provid-

71

ed that the effect is significant. To what extent the nature can return to the "scarred" area between the intact nature, depends completely on the ability of the relevant nature to restore itself, see below. Some types of nature cannot be recreat-ed. For example, no 7220 (springs) in Annex 9 of the Habitat Order - if the water conditions are changed, and the soil dug away, there will never be a similar spring again with the plant growth which is typical. 8.4.1.4 Killing of animal species and excavation of plant species Conscious pursuit of protected species can also result in environmental damage, unless permission has been given. Environmental damage to a protected species can, for example, be an egg collec-tor's collection of eggs for sale from birds listed in Annex I of the Bird Protection Directive, or illegal hunting of species which are listed in the annexes of the Habi-tat Directive or the Bird Protection Directive. It is, however, only environmental damage in those situations which lead to a sig-nificant effect on the relevant species' population. If the illegal collection of eggs in, for example, a nest of very rare peregrine falcons, who only breed in very few locations in the country, means that the basis for a future Danish population is re-moved, this will presumably be environmental damage. 8.4.1.5 Disturbances Some species can be very sensitive to disturbances in the form of activities which for example involve recreational comings and goings close to their nests, loose running dogs, use of vehicles off-road, mountain biking, sailing near small islands, etc. Some species are very robust when faced with disturbances, others rather shy. But for most species, disturbances close to or in the breeding period will mean envi-ronmental damage, if it has significant effect on the population. For some habitats, especially those with slow regeneration abilities, deterioration in the form of increased comings and goings and vehicle movements in connection with occupational activities can mean that the habitat is degenerated and destroyed. This can for example be a problem in habitats such as dune areas. 8.4.1.6 Short and long-term effects and accumulation Environmental damage can lead to acute effects on protected nature - excavated habitats or dead birds of prey can be seen. But many effects occur over time - and several years can pass before it is noticed that an activity is leading to environmen-tal damage to protected nature. Some activities will only give short-term damage, whereas others will give long-term damage, and in some cases the nature will not be able to be restored at the site. The damage must be evaluated in relation to the potential for achieving the objectives set for favourable conservation status. Some damages accumulate over time - and it only becomes damage when the ef-fect has taken place over a number of years and a threshold has been exceeded for when damage becomes significant. 8.4.1.7 Reversible and irreversible damage In every specific situation it must be evaluated whether the damage reduces the likelihood of nature being able to achieve and maintain favourable conservation status, or whether the damage effects the ecological functionality for animal spe-

72

cies covered by Annex IV of the Habitat Directive. In the evaluation of the extent of the damage, it must therefore be evaluated whether there is a question of irre-versible damage, where the potential for re-establishing destroyed nature has dis-appeared, or reversible damage where the nature can be restored. It can also be significant for how the damage must be assessed and possibly remedied. If there is a question of irreversible damage to nature, then in some cases it cannot be remedied at the damaged site, and it can in certain cases be a question of im-proving the conditions for a protected species or habitat at another site, so that overall, the conservation status is maintained. 8.4.1.8 Cumulative effects Effects which do not in themselves currently lead to environmental damage, but to a cumulative effect on nature, contribute to making nature more sensitive to future adverse effects. This could for example be numerous disturbances to a population of seals as a result of business seal safaris which put the population under pressure, so that they breed fewer young in the area concerned. The seal safari may not itself be a hindrance for achieving or maintaining the seals' favourable conservation sta-tus, but can lead to the species being more sensitive to other effects than it would otherwise have been. If the extent of seal safaris is increased, sailing close to the seals' breeding sites, precisely this type of increased occupational activity can lead to a hindrance for obtaining or maintaining the species' favourable conservation status and thus lead to environmental damage.

8.5 Examples of environmental damage

In this section, examples of adverse effects which can be environmental damage are examined. 8.5.1 Environmental Damage to Natura 2000 areas

Environmental damage is evaluated on whether the damage can affect future poten-tial to undertake major improvement measures such as nature and landscape care or restoration of natural environments with the objective of ensuring favourable con-servation status for the reason for designation, cf. the Natura 2000 plans which will be prepared according to the Environmental Objectives Act. An example could be splitting a habitat area with natural forest areas as a result of building a forest road in a situation where the road has not been reported according to the rules in Section 19 b of the Nature Conservation Act. The road creates a visual and especially physical barrier through the hilly forest area for an Annex II species - the pseudoscorpion Anthrenochernes stellae (invertebrate) which lives in the forest. Generally, the species will have poorer potential to spread itself around in the area. Populations can become isolated, and this means that their chances of increasing in number get worse. If the populations get too small, this can mean that in the long term they die out from the area, as small populations are more vulnera-ble to effects, and genetic variation in small populations is often poorer and this can lead to depression of the population due to inbreeding. When evaluating environmental damage to Natura 2000 areas, it must be under-lined that damage can also be caused by activities outside the designated areas, which have an effect inside the Natura 2000 areas and change the potential for achieving or maintaining favourable conservation status. For example, this can occur with a large pollution of substances foreign to the environment from a leak from a chemical company, which ends up in the nearest watercourse. The sub-stances are thus carried along the watercourse into a fjord area which is a Natura

73

2000 area with for example different wading bird species being the reason for its designation. If the pollution affects the species directly or their food sources signif-icantly and thus threatens the reason for designation of the area, it can be regarded as environmental damage. 8.5.2 Damage to Natura 2000 areas containing habitats listed in An-nex I of the Habitat Directive

In order to be able to evaluate whether damage changes habitats condition, the status classes can be used which can be found via the basic analyses. At www.vandognatur.dk, usable maps can be created which show precisely what the condition of the natural environment is for the habitats surveyed. If, for example, there is damage to a habitat with condition 1 or 2, one must evaluate whether the damage means that the habitat drops down the conditions scale for a shorter or longer time period - and whether the damage is so great that the likelihood that the habitat can be restored or return to good condition is very small. For a rich marsh (no 7230 in Annex 9 of the Habitat Order) with condition 1, dam-age which destroys its potential for restoration will be serious. This could for ex-ample be the case if the marsh is dug into, so that the actual habitat will disappear. This could also be the case if a riding school in a Natura 2000 area increases pres-sure from grazing in the form of a large number of horses in the marsh, so that there will be so much physical damage to the vegetation and the soil in the form of tramping and erosion that the species which help to give the high condition of the natural environment will diminish significantly or disappear completely. Damage to habitats with lower condition evaluations can also be regarded as envi-ronmental damage, in particular because they can be destructive for future nature administration endeavours. If a major nature administration endeavour has been planned in a Natura 2000 area with many status class III and IV habitats, with for example care of the natural environment with grazing, re-extraction from water-courses and stoppage of drainage from fields above rich marshes,so that the addi-tion of nutrients ceases, environmental damage can completely destroy this plan. This could for example be surface run-off of manure in connection with a large downpour of rain from the fields above, where the farmer has just been out to spread manure in contravention of the rules. This can destroy the marsh. Even though damage does not result in a protected habitat dropping one or more classes down the scale, there can still be a question of environmental damage. The damage must always be evaluated from the point of view of whether it is so signif-icant that favourable conservation status cannot be achieved or maintained. 8.5.3 Damage to bird species covered

Species which are covered by the Bird Protection Directive, article 4(2) (regularly returning migratory birds in significant numbers), or listed in Annex 1 of the Di-rective and these species' habitats. Some of the typical criteria for many of the birds which are listed in Annex I of the Directive are that there may not be any disturbance to the breeding area. Many species of bird are very sensitive to "irregular disturbances". A population of birds can adapt itself well to a nearby road or the like. A large, single business open-air event or the like close to their breeding sites during the breeding season can, how-ever, be very damaging for a population, as the parent birds can be frightened away from the nest, and eggs or young end up being eaten by predators who now have free access.

74

8.5.4 Damage to Annex II species

For each of the species there will be a question of environmental damage if it dam-ages the species' potential to achieve favourable conservation status. For the fen orchid, which is an Annex II species, aspects such as overgrowing, exposed land and hydrology are determining factors for whether the species is doing well. An example of this could be a meadow in a habitat area with a large population of the orchids, which is being grazed by cattle and that is thus kept as an open space. The site is then leased to a riding school which wants to use the area as an extra grazing site now and again. During a period with lots of rain, horses are placed on the site, and they tramp around so much that the soil is exposed and the vegetation on the meadow tramped down. The population of fen orchids is significantly reduced, and even after five years, when the horse grazing has ceased, it does not appear as if the species has returned. In Natura 2000 areas, significant changes in grazing intensity must be reported to the local municipality, cf. Section 19 b of the Nature Conserva-tion Act. 8.5.5 Damage to species which are listed in Annex IV of the Habitat Directive

For Annex IV species, it is as mentioned earlier important to look at whether an effect can damage the populations of these species. A rare species such as the thick-shelled river mussel, which today can only be found in Odense River, will be subject to damage as the population is isolated. The species is dependent upon clean water, a watercourse with diverse biotopes and the fish species minnow, which the mussel's larvae have as a host fish during propagation. An effect on the species, for a example by rough watercourse maintenance in addi-tion to the watercourse regulation or permission from the watercourse authority, can mean that individuals are killed. If the population is on the way to a minimum viable size, this can have catastrophic effects for the species in Denmark.

75

9 Environmental damage to water

9.1 Environmental damage to water in brief

Section 8 of the Environmental Damage Act sets out what is to be understood as environmental damage to water. Environmental damage to water is defined as any damage that significantly ad-versely affects the ecological, chemical and/or quantitative status and/or ecological potential of bodies of water covered by the Environmental Objectives Act. Environmental damage to water is therefore characterised by

• Damage that affects the ecological, chemical and/or quantitative status and/or ecological potential of groundwater and/or surface water covered by the Environmental Objectives Act. This is described further in section 9.2.

• There is a question of significant adverse effect on the condition of the body of water. It is a requirement that it can be documented that there has been a deterioration of the condition of the body of water. This is described further in the sections 9.3 and 9.4.

The Environmental Objectives Act includes the most significant part of the Danish implementation of the Water Framework Directive. The Water Framework Di-rective is not yet fully implemented, and where the Environmental Objectives Act and the associated Orders do not yet fully implement the provisions of the Water Framework Directive, reference is made in the following to the provisions of the Directive. 9.1.1 Examples of situations where there can be environmental damage to water

Examples of damage to water, which can be environmental damage, could be:

• A leakage of manure to a watercourse which involves the ecological status being significantly impaired for a longer period.

• A company upstream from a purification plant emits by accident large

amounts of polluting substances into the municipal purification plant, and the plant does not have the capacity to handle the increased load. The sub-stances are emitted because of the lack of purification and pollute the wa-tercourse significantly.

• A truck or railway tanker with chemicals overturns and gives rise to exten-

sive pollution of a watercourse which therefore has diminished chemical and ecological status for a longer period.

• A watercourse is dammed up without permission, and migratory fish are

thus cut off from their breeding sites in the upper part of the watercourse.

76

Over time, the change can lead to the population of migratory fish disap-pearing from the watercourse.

• A ship (e.g. after running aground) leaks bunker oil to such an extent that

there is significant pollution of the coastal water, so its ecological and chemical status is significantly impaired. Such pollution will in some cases also affect the coast, and can therefore also constitute damage to land.

• Penetration of salt water into water sources. Salt water penetration can oc-

cur over a longer period of overextraction, whereby salt water is sucked in from the coast or up from deeper lying layers.

• Groundwater pollution from industry, e.g. pollution with chlorinated sol-

vents which stem from large industrial cleaning plants. These types of pol-lution will in some cases also constitute damage to land.

Some water areas are also habitat areas or habitats for protected species. Where this is the case, it is also necessary to investigate whether there is a question of damage to nature.

9.2 Bodies of water

All bodies of water which are covered by the Environmental Objectives Act are covered by the Environmental Damage Act. Bodies of water cover watercourses, lakes, coastal waters and artificial or heavily modified water areas, which collec-tively are called bodies of (surface) water, as well as groundwater. The bodies of water are identified in the basic analysis which was undertaken by the counties in 2004 according to the Environmental Protection Agency's guide-lines on characterisation of bodies of water and judgement of effects /1/. There are, however, still many small watercourses, lakes and bodies of groundwater which are not identified in the basic analysis, but which are still covered by the Environmen-tal Objectives Act and thus also by the Environmental Damage Act. All watercourses and lakes are covered by the Environmental Objectives Act, re-gardless of whether they have objectives set or not. This also applies to artificial or heavily modified water areas in the form of canals, quarry lakes, mill dams, etc. Temporary waterholes and the like are however not covered. The sediment at the bottom of bodies of surface water is covered to the extent it influences the condi-tion of the water areas, which is primarily the case in lakes and coastal waters. Coastal waters up to one nautical mile from the line which marks the starting point for fixing the Danish territorial waters (baseline) are covered. For chemical status, the limit is however 12 nautical miles from the baseline. A map of the coastal wa-ters covered can be found in the Order on characterisation of bodies of water, judgement of effects and surveying of water resources1and in the guidelines on the basic analysis, part 1 /1/. Bodies of groundwater cover all groundwater found in aquifers. The designation of bodies of groundwater was revised in 2006 /12/. Wetland areas in the form of marshes and meadows, etc. where there is no open water, are not covered by designation and objective setting for bodies of water

1Order No 1355 of 11 December 2006.

77

according to the Environmental Objectives Act, and they are therefore not covered by the Environmental Damage Act as areas where damage to water can occur. Note, however, that wetland areas must be included if they dry out because of groundwater extraction (see section 9.4.3) or if they cover protected natural habi-tats or are habitats of protected species, cf. Chapter 8.

9.3 Information about baseline condition

Environmental damage to water is a significantly adverse effect on the condition of a body of water. In order to be able to evaluate whether there is a question of envi-ronmental damage, it is necessary to be able to evaluate the difference between the status of the body of water prior to their damage and the status after. For this pur-pose, it is necessary to know about the condition of the body of water before the damage occurred. 9.3.1 Starting point

The starting point for the evaluation of whether there has been an environmental damage is the condition before the environmental damage occurred. When this status has to be determined, it is necessary to take seasonal variations and variations due to climate into consideration. The variations thus make it more difficult to evaluate the extent of the damage, and the evaluation will depend on the basis of the documentation, cf. below. Regardless that a body of water can have been subject to a development where there was an ongoing improvement in the condition of the body of water, and the damage hindered or delayed this continued development, it is the status at the time of the environmental damage which is included in the evaluation of whether there is a question of environmental damage. The same applies to bodies of water which are undergoing a negative development - in this case, a subsequent deterioration which would have occurred anyway is not included. Correspondingly, it can be necessary to take into account the changes in the condi-tion of the bodies of water which are caused by climate changes. On the one side the climate changes can lead to increased sensitivity of bodies of water, which in-creases the risk for a particular effect leading to environmental damage, but on the other side they lead in some cases directly to an impaired condition which cannot be put down to any possible perpetrator. The consequences of climate changes are not yet completely understood and do not make up part of the first generation of water plans which were passed in 2009. 9.3.2 Data

An initial overview of the status of bodies of water and the effects can be obtained in the reporting of the basic analysis for each of the former 12 water districts on the website of the Agency for Spatial and Environmental Planning. The basic analysis does not however cover detailed reporting of individual parameters and effects, and it can therefore be relevant to seek more detailed information elsewhere. More detailed monitoring results and information about the condition of water areas can be found at the Ministry of the Environment's environment centres, who

78

possess the documentation on which the basic analysis was based. In connection with the environment centres preparing proposals for the water plans, more detailed and systematic reporting of this data occurs in the meantime, and the information will therefore as a rule be immediately available on application to the local envi-ronment centres. Information about the condition of the bodies of water can also be obtained from the monitoring reports, etc. which are published by the former counties or the Na-tional Environmental Research Institute, GEUSor the Ministry of the Environ-ment's environment centres. Ideally, the existing monitoring programmes for surface water and groundwater cover the need for knowledge about the condition of bodies of water. In practice, however, no specific monitoring of all bodies of water is undertaken, and not all relevant parameters are monitored at all monitoring points. It will therefore in many cases be necessary to be able to propose justified assumptions about the con-dition of the body of water prior to the damage. In a number of cases there will be a question of specially polluting substances or very high concentrations, which there is no reason to assume were present prior to the damage. In these cases, the requirement for documentation for the baseline condition is limited. Correspondingly, in the most apparent cases there will be a question of visible damage such as for example dead fish, where it may be assumed that they were alive prior to the damage. Things are different if there is a question of more normally occurring polluting substances or more moderate concentrations, and if the damage is less obvious. Where no directly applicable monitoring data are available, the evaluation is based on the condition prior to the damage to: 1) The type and natural conditions of the body of water. 2) The level of effect. 3) The condition of bodies of water which are similar to the damaged body of

water with regard to 1) and 2). The municipalities undertake inspections of most of the activities which can affect bodies of water, and therefore have relevant data for this. There is a question of information from the municipal inspections of companies and water works, etc. in addition to the results from their own checks and controls. If the local municipality additionally monitors the condition of bodies of water and therefore has further information, these data are also included. When the condition prior to the damage has to be evaluated for a body of water, it will often be necessary to use data which is several years old as a starting point. In these cases, the condition should be extrapolated based on the information availa-ble about changes in the effects and any trends which have previously been ob-served. 9.3.3 The condition of surface water

Bodies of surface water have objectives set and are evaluated according to ecologi-cal and chemical status. For artificial or heavily modified water areas, ecological potential and chemical status are used instead. Ecological and chemical status are each evaluated separately, and both must be fulfilled for the water area to be in a good condition.

79

9.3.3.1 Chemical status The chemical status of surface water is described as either "good" or "not good". A good chemical status means that the concentrations of polluting substances do not exceed the environmental quality standards which are set at Community level. The polluting substances in question are only substances on the list of priority sub-stances as well as the substances covered by other Community legislation, in which environmental quality standards are set for surface water, including daughter Di-rectives to the Dangerous Substances Directive. The list of priority substances was passed in 20012 and can be found on the European Commission's website /4/ The list of priority substances must be revised every four years; the first revision is expected in 2008. New substances will be added and new proposals put forward for environmental quality standards. The list of priority substances will be introduced into Danish legislation via an Order on Environmental Quality Standards for Water Areas and Standards for Emission of Polluting Substances to Watercourses, Lakes and the Sea3, where the priority substances can be found in Annex 3. This Annex also covers individual substances which are carried over from the so-called list I4. The Annex will be revised when the list of priority substances is revised, which is expected to take place when adopting a new Directive on priority substances. The proposal for this Directive was put forward in July 2006, and the Directive is expected to be adopted in 2008. 9.3.3.2 Ecological status The ecological status of water areas is determined by an interaction between natu-ral conditions and man-made effects. The ecological status is described in the Wa-ter Framework Directive in five status classes shown in the overview in Table 9.1 Table 9.1 Overview of the five status classes Status Description High status No or only insignificant deviation from undisturbed con-

ditions Good status Low deviation from undisturbed conditions Moderate status Slight degree of deviation from undisturbed conditions,

but significantly larger than for good status Poor status Large deviation with significant changes to the biologi-

cal communities Bad status Serious changes where large parts of the relevant bio-

logical community, which would be present under un-disturbed conditions, are not present

The five status classes are defined for watercourses, lakes and coastal waters re-spectively. The definitions can be found in Annex V of the Water Framework Di-rective. The definitions and specific values for the five status classes will be shown in the Order on Environmental Objectives which the Minister for the Environment will issue as a basis for the water plans which the Ministry of the Environment's envi- 2Decision No 2455/2001/EC of the European Parliament and of the Council of 20 Novem-ber 2001 establishing the list of priority substances in the field of water policy and amend-ing Directive 2000/60/EC. 3Order No 1669 of 14 December 2006. 4 List I: Annex 1 of Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community (amended by Council Directive No 2006/11/EC of 15 February 2006, codified version).

80

ronment centres must prepare before the end of 2009. A draft of the water plans will be sent for hearing no later than 22 December 2008. At the time of writing, it is expected that the Order on Environmental Objectives will be available in the middle of 2008. It may also be expected that the Order on Environmental Objec-tives will be revised as the basis for the data for quantifying the environmental objectives is improved. Artificial or heavily modified bodies of water are not classified with ecological status; instead, ecological potential is defined, corresponding to the five status clas-ses. These status classes are set based on the scale for ecological status, but with specific modifications for the water area concerned, depending on the physical changes which are the cause of the designation as heavily modified bodies of wa-ter, or for artificial bodies of water the specific limits with regard to obtaining good ecological status. The status of a body of surface water is described with the values for selected qual-ity elements. The quality elements are divided into:

• biological quality elements, • hydromorphological quality elements (physical conditions) which support

the biological quality elements, and • physicochemical quality elements (temperature, oxygen conditions, etc.)

which support the biological quality elements. The specific parameters which are included in the judgement differ for watercours-es, lakes and coastal waters respectively. For each category of surface water (wa-tercourses, lakes, coastal areas), a typology is also put forward which reflects the different natural conditions. The typologies are described in the guidelines about basic analysis. Furthermore, the concentration of the polluting substances which are not part of the evaluation of chemical status is included in the definitions of ecological status and ecological potential respectively:

• High ecological status requires a concentration of polluting substances close to zero or equivalent to undisturbed conditions.

• Good ecological status requires that the concentration of polluting sub-stances does not exceed the national environmental quality standards set in accordance with the Directive by means of the Order on Environmental Quality Standards for Water Areas and Standards for Emission of Polluting Substances to Watercourses, Lakes and the Sea.

• If this is not met, there is a question of moderate, poor or bad ecological status.

The equivalent applies for maximum ecological potential, good ecological potential and moderate, poor and bad ecological potential for artificial and heavily modified water areas. National environmental quality standards are mentioned in Annex 2 of the Order on Environmental Quality Standards for Water Areas and Standards for Emission of Polluting Substances to Watercourses, Lakes and the Sea5. . In addition, in some places there are local standards for specific polluting substances which are emitted at the site concerned. The Ministry of the Environment's environment centres col-lect this information.

5Order No 1669 of 14 December 2006.

81

9.3.3.3 Ecological status of watercourses The status of watercourses in Denmark is, until further notice, judged exclusively on the basis of the Danish Watercourse Fauna Index (DVFI) which is a systematic method for judging presence and composition of species of animals living at the bottom of watercourses (benthic invertebrates). The DVFI reflects the watercourse quality and goes from 7 which indicates a very diverse animal life to 1 which indi-cates monotonous or absent animal life presence. Both physical and chemical con-ditions, including natural conditions, enter into the DVFI, which under unaffected conditions will be highest in watercourse apexes fed from groundwater, and lower in slow-moving stretches downstream in the watercourse system. In the Water Framework Directive, there are however more detailed definitions of the status of a watercourse. Other quality elements can thus be used to support the evaluation of the status of a watercourse. Descriptions of the quality elements which make up the definitions of good ecological status in watercourses in the Water Framework Directive can be found in Annex V of the Directive. The fish fauna can be used as a starting point for evaluating pollution as well as physical changes. Certain types of damage, for example damming, affect the fish fauna to a much higher degree than the other quality elements. Investigations into fish stocks have previously been undertaken by the counties and by the Danish Institute for Fisheries Research. The state environment centres have information about this. With regard to the physical conditions of watercourses, aerial photos can be a good source for evaluating whether the physical conditions of the water areas have changed. New aerial photos are taken at least every other year. 9.3.3.4 Ecological status of lakes In the Water Plan 2009, the status of lakes is evaluated based on chlorophyll a, and different values for shallow water and deep lakes respectively are set. The line between these is drawn at an average depth of 3 metres. As a rule, the chlorophyll content reflects the level of phosphor in the lakes and can be correlated with a number of other biological quality elements. 9.3.3.5 Ecological status of coastal waters The typology for open coastal waters is based on salinity, tidal conditions and ex-posure. The fjord types are also categorised according to degree of stratification and outflow index. Judgement of the status of coastal water involves more parameters than is the case for watercourses and lakes so far. The condition of tidal waters is judged based on

• chlorophyll a (phytoplancton) • bottom vegetation (translation of the index for use in national coastal water

types is under development) • depth limit for eelgrass (aquatic macrovegetation)

There is also an objective for macroalgae under development. The status classes linked to these parameters will be mentioned in the Order on Environmental Objec-tives. There is currently no data available for including species composition of phytoplancton in the judgement of the ecological status of coastal waters. 9.3.4 Status of groundwater

The status of groundwater is described by its quantitative status and chemical sta-tus. For groundwater there are only two status classes: Good and poor. Groundwa-

82

ter which does not have a good quantitative and chemical status has a poor status. The definitions will be included in the forthcoming Order on Environmental Objec-tives. The Groundwater Directive puts into practice the provisions of the Water Frame-work Directive regarding the chemical status of groundwater. Parts of the Ground-water Directive are thus also implemented by means of the Order on Environmen-tal Objectives mentioned above. As the environmental objectives for groundwater, both quantitatively and chemi-cally, reflect the environmental objectives for surface water, future updates of the environmental objectives for groundwater must be expected because of adjust-ments to the objectives for surface water. The status of groundwater and the values of the parameters which are used to de-scribe the status of groundwater are determined by a combination of natural condi-tions and human influence. Often, it is necessary to include both the monitoring results which reflect the status of the groundwater directly, and existing influences as well as changes in the influences over time in order to obtain an evaluation of the status of the body of groundwater prior to a given influence. Generally, basic data for evaluating the status of groundwater, including all report-ed chemical analyses, is available in the Jupiter database at GEUS. In some cases, the regions also have further information about groundwater pollution which has been investigated in connection with surveys under the Land Pollution Act. This data is not always found in the database. 9.3.4.1 Quantitative status The quantitative status of groundwater is always good if it is not affected by water extraction or other human activity which leads to lowering of the groundwater ta-ble. The quantitative status of a body of groundwater can, however, be diminished even if there are no direct effects on the body of groundwater, as for example bod-ies of groundwater close to terrain can be affected by water extraction in ground-water stores below. When there is not sufficient indicative data to evaluate the effects of quantitative effects on the groundwater, hydrologic modelling is another possibility for obtain-ing a basis for the evaluations. In this case, a combination of geological infor-mation, climate data and hydrological data is used to calculate the effect of differ-ent influences. 9.3.4.2 Chemical status The chemical status of groundwater is always good if it is not affected by pollution or other human activity which leads to chemical changes to the groundwater. It can, however, be impossible to determine whether a particular body of groundwa-ter was already affected by pollution or other human activity, if no chemical anal-yses of the groundwater are available. If there is not knowledge or a justified suspicion that the groundwater has been polluted or has had its quality diminished for a given influence, the groundwater may be assumed to have had a good chemical status. Justified suspicion that the groundwater has been polluted or has had its quality diminished prior to an influ-ence can for example occur in the following cases: Upper groundwater in agricultural areas often has an increased nitrate content. This especially applies in areas with light soil. In areas with poor natural protection of

83

the groundwater, nitrate influences are often found at greater depths. These nitrate-affected upper groundwater stores are not generally investigated. Where monitor-ing data is not available, it may be assumed that the groundwater stores with poor or no natural protection, cf. the zoning guidelines /9/, and which lie in agricultural areas can have a nitrate content which exceeds 50 mg/l. This rarely applies to groundwater stores with some or good natural protection. Small concentrations (up to a few μg/l) of pesticides or degradation products from pesticides are widespread in groundwater close to terrain, but can also be found at greater depths, especially in areas with significant build-up of groundwater. The degradation product BAM is the most commonly found substance, but a large number of other pesticides and degradation products can be found in groundwater, cf. monitoring reports from GEUS. Pesticide residues are most often found close to towns, washing areas on agricultural properties or infrastructure such as railways, but it is not always possible to identify the source or sources. In connection with industrial areas and older urban areas, more widespread groundwater pollution is often found, in particular with chlorinated solvents or other substances foreign to the environment. This pollution is as a rule described, and information about it can be found with the local regional authority. Increased content of chloride can be natural in areas close to coasts and areas which have previously been covered by the sea, but can also be due to excessive extraction of groundwater, which sucks water with a high chloride content in from the coast or up from deeper layers. There will in general be information about these situations, since chloride analyses from the extraction bores of waterworks are available. However, this is not always the case for extractions for other purposes. An increased chloride content in groundwater can also be seen for many years after the extraction is reduced, as the washing out of chloride from groundwater stores only happens very slowly. Finally, the evaluation of the status of groundwater at a given site prior to an actual influence must occur with consideration for knowledge of known sources of pollu-tion which are registered with the regional authority. 9.3.4.3 Influences on wetlands According to the Water Framework Directive, damage to wetlands caused by man-made changes to both the quantitative status and the chemical status of bodies of groundwater can lead to a poor status of groundwater. In practice, the problems will most often be associated with the quantitative status of groundwater and occur as a consequence of overextraction. The status of wetlands is only monitored to a limited extent when there is a ques-tion of wetlands which are not designated as habitats. It can therefore be difficult to evaluate how the status was prior to a given influence. In practice, it will only be influences on habitats which are evaluated in this context. This is described more precisely in Chapter 8. As there are very large variations in flora and fauna over time, it can be relevant to supplement the evaluation of the condition of wetlands with an evaluation of the variations in the inflow of groundwater, possibly with a hydrological model.

84

9.4 The extent and character of the damage

For damage to be environmental damage to water, there must be a question of sig-nificant adverse effects on the ecological, chemical or quantitative status or ecolog-ical potential of the waters concerned. Significant damage to water is damage which

• leads to a significant deterioration of the body of water, • affects a body of water of particular significance, and which • is not restored naturally within a reasonable time period.

Based on the principle of proportionality, it may be determined that significant damage must have such a character, extent and a public interest for those other than those immediately affected, that it is reasonable in relation to the Environmental Damage Act's requirements for environmental centres' handling of environmental damage, including in particular the requirements for complementary and compen-satory measures for remedying damage to water. Questions about what is a significant deterioration in this context, how large an affected body of water should be, and how long the damage lasts depend on specif-ic conditions for the different types of damage, and they are evaluated differently for watercourses, lakes, coastal waters and groundwater. This is described more precisely in the following sections. 9.4.1 Damage to ecological status

9.4.1.1 The extent of the damage As a starting point, environmental damage covered by the Environmental Damage Act is understood to be damage which can lead to a deterioration of the status class as described in section 9.3 and the Order on Environmental Objectives (expected in the course of 2008). Even though the damage does not lead to the water area concerned moving down a class on the scale, there can still be a question of environmental damage. For ex-ample, this can be the case if the status of the water area deteriorates from the top of the class to the bottom of the class, and if a water area which has a moderate status because of obstructions, but where the water quality is good, is polluted to such an extent that it would have led to it moving down a class of under other cir-cumstances. The same applies if the water area already has a poor status (lowest class); in this case it cannot move down a class, but can deteriorate anyway. Conversely, damage does not need to be covered by the Environmental Damage Act, even if it leads to a water area changing from one status class to a lower one. This can be the case when the water area is already borderline to the poorer status, and when the damage only led to a minor deterioration, and the water area then lies at the top of the next class. Damage to ecological status can occur as a result of many different types of influ-ences. As a starting point, there may be a question of

• Direct effect on the biological conditions • Influence on the hydromorphological conditions which support the biolog-

ical conditions • Influence on the physicochemical conditions, including inflow of specific

polluting substances.

85

Many types of activity influence several of the conditions mentioned simultaneous-ly. For example, emission of wastewater can affect both the hydromorphological conditions and the physicochemical conditions, water extraction can affect the hy-dromorphological conditions, and use of dams can affect all three factors. When there is a question of pollution, the ecological status and/or the chemical status are affected according to which substances are concerned. Pollution with priority substances and substances covered by daughter Directives of the Danger-ous Substances Directive affects the chemical status, whereas pollution with other substances affects the ecological status, cf. section 9.3.3. Pollution which leads to damage to the chemical status can additionally affect the biological conditions, so that damage to the ecological status also occurs. In Table 9.2, rules of thumb are put forward for how great the effect of pollution must be in order to lead to environmental damage to the ecological status in the sense of the Environmental Damage Act. Note that because the status classes are also determined by other factors than the concentration of non-priority substances, the status of a body of water prior to the damage can be moderate, poor or bad without the concentration of substances exceeding the environmental quality stand-ards set.

Table 9.2 How much pollution is required in order to lead to environmental damage in the sense of the Environmental Damage Act

Status prior to the damage

Content of substances which are not priority substanc-es or dangerous substances

Status after the damage

before the damage after the damage High ecological status

Close to zero or equiva-lent to undisturbed conditions.

Below the environmental quality standards set, but above the values for "high ecological status"

Good ecologi-cal status

Good ecologi-cal status

Below the environmen-tal quality standards set.

Exceeds the environmental quality standards set for one or more parameters.

Moderate eco-logical status

Moderate, poor or bad ecologi-cal status

Below the environmen-tal quality standards set.

Exceeds the environmental quality standards set for one or more parameters.

The status class can be un-changed or lowered

Moderate, poor or bad ecologi-cal status

Above the environmen-tal quality standards set.

Increased by at least a fac-tor of 10. After this, the con-centration of the current parameters is at least 10 times those in the environ-mental quality standard.

The status class can be un-changed or lowered

For pollution, the problem of documenting the connection between the causal ac-tivity and the subsequent damage does not occur as often as for the other types of influence. However, it can in some cases be a problem to find the polluter. If the polluter cannot be identified, it is not possible to handle the case under the Envi-ronmental Damage Act, cf. Chapter 7. Where there is a question of bodies of surface water which are also designated as bodies of drinking water, consideration must also be taken to this. Evaluations with regard to drinking water are described more precisely in sections 9.4.3 and 9.4.4.

86

The considerations about the time period for chemical status of groundwater also apply to the chemical status of bodies of drinking water in surface water. Where wetlands are significant for the status of a body of water, damages to these areas can give rise to environmental damage to water. This can for example be the case if a wetland has an important role for the removal of nutrients in the water flowing to a watercourse. Damage which reduces the wetland's ability to remove nutrients can thus result in damage to water. 9.4.1.2 The time aspect Damage which restores itself within a short time is not significant damage, and it is therefore not covered by the Environmental Damage Act. The same applies to damage which is quickly averted, and where the consequences can no longer be measured in the surroundings after a short time. For example, it would not be rea-sonable to initiate handling of the case under the Environmental Damage Act for damage where the effect on the wetland will have passed before a decision can be made in the case. The question is rather what can be considered to be a short time in this context. Some types of damage are not - or basically not - restored naturally. This applies particularly to damage where the effect continues even though the causal activity has ceased. This is for example the case for

• damming of water where the effect is lasting • persistent pollution which is not transported, but binds to the bottom sedi-

ment • pollution which is due to seepage from land pollution.

When there is a question of damage where the causal activity continues, as a rule there will not be any natural restoration of the condition. That applies for example to

• ongoing water extraction • ongoing emission of polluted water • other pollution from activities which are ongoing.

Other damage which is not restored naturally is irreversible damage, for example in the form of extinction of whole populations of fish or small animals in a water area where the animals cannot therefore return from up or downstream areas. One ex-ample which can be mentioned is an overturned tanker which back in 1968 was the cause of pollution of the Kongeå river where the whole population of graylings was made extinct. The graylings did not return to the river until in the 1980s when they were released with the intention of rebuilding the population. Finally there is damage where restoration only occurs slowly. Pollution which builds up in sediments or in organisms living in the water only disappears slowly, and the effects of for example overextraction of groundwater in a catchment area only cease slowly as the groundwater level rises. For many types of damage, the size of the affected area is significant for whether natural restoration occurs, and how long it takes. As mentioned above, a whole population can be made extinct in a watercourse system, which reduces or prevents any possibility for natural restoration. The time perspective for the natural restoration of environmental damage to surface water must be seen in relation to the life cycle of the organisms which live in the water areas and which are the starting point for evaluating the ecological status of

87

the water areas. The biological quality elements which the water areas are judged on are as mentioned in section 9.3.3 as follows:

• Phytoplancton, which has a seasonal variation which makes it difficult to judge changes over less than a one year period

• Other aquatic flora, which in most places is re-established quickly after a particular effect has ceased

• Macro invertebrates which have a one-year life cycle • Fish which are partly very mobile and partly live for several years. In this

case, judgement includes the age breakdown, and it will be clear if for ex-ample a whole year is missing.

Generally, it can therefore be evaluated that if the natural restoration of the condi-tion of the water area occurs within a shorter period, it will occur within one year. Damage which can be identified in a water area more than one year after it began can therefore be significant damage and thus be covered by the Environmental Damage Act. For the other quality elements which are monitored in water areas, this is signifi-cant for the evaluation of whether the damage is considered to be significant: Hydromorphology:

• continuity is not normally restored by itself. • hydrology is only restored if the effect ceases and possibly over a longer

time period, cf. above. • morphology - minor changes are restored in some cases.

If a hydromorphological effect leads to a significant deterioration, it will most of-ten be of such a character that it cannot be restored naturally within a shorter time period. Physicochemical conditions:

• thermic conditions are restored quickly once the effect has ceased. • oxygen conditions are restored dependent upon local flow conditions, but

as a rule within one year. • salinity and acidity are seldom affected by the activities which could lead

to environmental damage to water, and must always be evaluated specifi-cally and in the context of hydraulic and morphological conditions.

• nutrients are transformed continually, but how fast natural restoration oc-curs once the effect has ceased, depends partly on the concentrations and partly on the hydraulic and morphological conditions.

• the presence of other polluting substances must always be evaluated specif-ically and also depends on hydraulic and morphological conditions.

The evaluation of the effects on the physicochemical conditions thus often depends on local conditions and the sensitivity of the body of water concerned. 9.4.1.3 Damage to watercourses As mentioned, all watercourses, even the smallest ones, are covered by the Envi-ronmental Damage Act. Before there can be a question of damage in the sense of the Act, there must however always be a question of damage to a watercourse stretch of certain significance. It is not just the length of the stretch of watercourse which is significant, but also its role in relation to the overall ecological functional-ity of the watercourse. What has to be evaluated is not just the size of the directly affected stretch, but also the size of the part of the watercourse or watercourse sys-tem which is indirectly affected by the damage.

88

The most significant stretches of watercourse are those stretches where fish breed. These stretches are also especially subject to influence, and therefore damage to such stretches will more often fall under the Environmental Damage Act than dam-age to other stretches. An effect on a breeding stretch will therefore have signifi-cance for a significantly larger part of the watercourse, and the effect on the overall ecological status of the watercourse will therefore be large. Correspondingly, the risk of damage will be greater, the better the condition of the watercourse prior to the damage. A watercourse with vulnerable freshwater fauna will be significantly more sensitive to the effects of pollution than a watercourse where fauna is already affected by pollution. The duration of the effects and the time when the effects occur are also significant for whether the damage comes under the rules of the Environmental Damage Act. As mentioned above, the starting point for evaluating the duration of an effect is that damage which cannot be shown after one year is not significant environmental damage and therefore not covered by the Environmental Damage Act. The time perspective for natural restoration in watercourses must be seen in the context of the size of the affected area. In a watercourse system, even slightly larg-er amounts of pollution will not have a lasting effect, as fish and small animals can migrate back from up and downstream areas. The potential for natural restoration is, however, closely connected to how large and significant the affected part of the watercourse system is, and the sensitivity of the watercourse system to pollution. If a significant part of the watercourse system is affected, it will take longer for the populations to re-establish themselves, all things being equal. The extent of the damage must therefore be seen in relation to how the watercourse stretch affected forms part of the overall watercourse system. If a very long stretch of watercourse is affected, restoration and re-migration can take a long time, and it can therefore also give rise to environmental damage. 9.4.1.4 Damage to lakes As mentioned, all lakes are covered by the Environmental Damage Act. As with watercourses, there must however be a question of damage to a lake or part of a lake of certain significance. In this case, it is significant how large the lake is, how large a part of the lake is affected, and what role the lake or the affected part of the lake has in any larger watercourse system. The state water planning according to the Environmental Objectives Act covers lakes which are larger than 0.05 km², as well as lakes smaller than that with specif-ic objectives set. Damage which can only be registered in one lake which falls out-side these categories, is not significant enough to come under the rules of the Envi-ronmental Damage Act. The same applies to damage which affects less than 0.05 km² of a larger lake. There can, however, be a question of environmental damage if several smaller lakes with an overall area of more than 0.05 km² are affected. Even though less than 0.05 km² are affected directly by the damage - for example in the form of emission of pollution or physical changes - the damage may in fact affect the ecological status in a larger area and thus fall under the rules of the Envi-ronmental Damage Act. These conditions must necessarily be evaluated specifical-ly in each case. As mentioned above, the starting point for evaluating if the damage is significant, and thus covered by the Environmental Damage Act, is whether it can be seen for at least one year. In lakes, it is very different how the conditions for natural restora-

89

tion of the condition are, as it to a certain extent depends on the rate of water re-placement and on the connection with or to other lakes or to watercourses. In addi-tion, the sensitivity of the lake to pollution is also very significant. 9.4.1.5 Damage to coastal waters For damage to coastal waters to be able to qualify as environmental damage in the sense of the Environmental Damage Act, the damage must affect a certain sized area of coastal water. In consideration of comparability to environmental damage to lakes, the starting point may be used that if the damage affects an area which is less than 0.05 km², there is scarcely any question of environmental damage in the sense of the Environmental Damage Act. When there is a question of larger areas than this, it is always necessary to evaluate the conditions specifically with regard to the current effect. However, the dynamics of coastal waters are often so great that natural restoration primarily depends on whether the effect in the form of physical changes or pollu-tion has ceased. In small inlets and fjords there are however smaller dynamics and connections to other water areas, and natural restoration can therefore take longer there. 9.4.1.6 Damage to ecological potential Damage to ecological potential for artificial and heavily modified water areas are evaluated starting from the same principles which are described for watercourses, lakes and coastal waters above. Artificial or heavily modified water areas are char-acterised and evaluated starting from the natural category of the water area they most resemble. The evaluation also starts from the specific objective setting for the water area concerned, as the requirements for these areas will always be specific, depending upon the physical changes of the water area which have been the cause of it being designated as artificial or heavily modified. 9.4.2 Damage to the chemical status of surface water

As described in section 9.3.3, the chemical status of surface water is defined in relation to the content of priority substances and substances covered by other Community legislation, in which environmental quality standards are set for sur-face water, including daughter Directives to the Dangerous Substances Directive. Surface water has a good chemical status when the environmental quality standards which are set at Community level are met, otherwise the chemical status is poor. For damage to the chemical status of surface water to be covered by the Environ-mental Damage Act, there must be a question of significant adverse effects. If such an effect leads to the environmental quality standards not being met in a water area of a particular size, and not being restored within a reasonable period of time, the damage is covered by the Environmental Damage Act. However, significant damage in the form of pollution does not always lead to a water area moving from one status class to another. This will for example be the case when the body of water does not have a good chemical status. Pollution which in other circumstances would lead to a change from a good chemical status to a poor chemical status can be significant damage. For chemical effects to surface water, it applies just as for other types of environ-mental damage that there is only a question of environmental damage from a legal point of view if it affects a particular water area, and if it is not restored naturally - i.e. the pollution disappears by itself - within a reasonable period of time. In this

90

case, the same starting point is used as for damage to ecological status, cf. section 9.4.1. For damage which occurs from pollution, the problem of documenting the connec-tion between the causal activity and the subsequent damage does not occur so of-ten. However, it can in some cases be a problem to find the polluter. If the polluter cannot be identified, it is not possible to handle the case under the Environmental Damage Act, cf. Chapter 7. 9.4.3 Damage to the quantitative status of groundwater

Damage to the quantitative status of groundwater is expressed by a drop in the pressure level of the groundwater, which is either shown in the water table in free stores or the potential in pressurised stores. 9.4.3.1 The extent of the damage A falling water table can often be registered over a period of less than 5 to 10 years, as the groundwater table is subject to natural fluctuations as described in section 9.3.4. If there is a question of large overextraction, it will already be possi-ble to show the effects after a few years, but if there is a question of a small over extraction, the effect will accumulate over time and first be able to be identified with certainty after several years. When evaluating whether water extraction is the cause of a falling water table, comparison with time series for other nearby areas can be of assistance. An exam-ple of two long sounding time series can be seen in Figure 9.1. As shown, the water tables in the two boards are at the same level in the whole period from 1962 and up to around 1980. At this point in time, the two-time series begin to differ markedly, which can be due to one bore being subject to increased extraction. It can, howev-er, also be due to the other bore being affected by reduced extraction or extraction having stopped completely, and it will therefore always be necessary to investigate the conditions more closely.

4

5

6

7

8

9

10

11

1962 1972 1982 1992 2002

DGU 237.43 DGU 237.72

Figure 9.1 Sounding time series for two bores on Lolland

In cases where it is not obvious if the new water extraction or a fall in groundwater level is the cause of the overall extraction being larger than the available resources, further light can be shed on the conditions by hydrological modelling. An effect causes a significant reduction in the quantitative status of the groundwa-ter if the reduction is of such a size that it would be able to lead to the body of groundwater moving from good to poor quantitative status. A change from good to poor quantitative status can be caused by:

91

1. Extraction of groundwater which leads to the groundwater table falling over a period of years as a result of the extraction exceeding the available groundwa-ter resource. Evaluation of whether there is a question of the water table still falling as a re-sult of the extraction being greater than the formation of groundwater requires a closer analysis of extraction and groundwater formation, perhaps in the form of hydrological modelling. It can be necessary to take induced groundwater formation into account, i.e. the condition that groundwater formation in areas with groundwater stores under pressure is increased when the water table in the store drops.

2. A fall in the groundwater level which leads to a lack of inflow of groundwater to a watercourse or a lake, whereby the status is significantly deteriorated. The evaluation of the effect of the status of watercourses and lakes is de-scribed in section 9.4.1. In order to identify a quantitative damage it is however necessary for a con-nection to be able to be shown between the effect (extraction/groundwater fall), the drop of the water table in the groundwater store, the lack of inflow of groundwater to the watercourse or lake and the deteriorated status of the water area.

3. A fall in the groundwater level which leads to a lack of inflow of groundwater to a wetland, whereby the wetland is significantly damaged. In order to identify a quantitative damage it is however necessary for a con-nection to be able to be shown between the effect (extraction/groundwater fall), the drop of the water table in the groundwater store, the lack of inflow of groundwater to the watercourse or lake and the deteriorated status of the water area. As mentioned in section 9.3, it is a general problem that only very sparse doc-umentation of the status of wetlands prior to any environmental damage is available. To the extent that the necessary data is available, changes in the sta-tus of wetlands can be evaluated using the same criteria which are used for the corresponding Natura 2000 areas. In relation to protected species and interna-tional habitats, damage is evaluated as described in Chapter 8.

4. Changes in flow direction as a result of changes in the groundwater level can lead to salt water penetrating into groundwater stores. Excessive extraction can correspondingly lead to increased nickel content. When the content of chloride or nickel exceeds the limit for drinking water (provided by waterworks), caused by excessive extraction, there is a question of environment damage. As described above, there is a need to show the con-nection with a lowered water table. Chloride due to extraction will as a rule be seen as an increasing chloride content over a large number of years. For nickel, there are however rarely any long time series available which can show a rising trend. Nickel problems due to extraction are due to oxidation of pyrite which occurs naturally in chalk deposits. Nickel content in excess of 10 μg/l is often due to the groundwater table having sunk below the chalk sur-face, and pyrite is therefore oxidated, but oxidation of pyrite can also occur

92

through the washing out of nitrate in agricultural areas. In order to document environmental damage, it is necessary to evaluate this more closely.

9.4.3.2 The size of the water resource - the affected area A water resource which is significant for the evaluation of the quantitative status of the groundwater is first and foremost a groundwater resource which is significant for the status of connected surface water systems or wetlands, cf. above. If quantitative damage shows itself in a significantly falling water table in one or more bores or as significant salt water influence on one or more bores, it will be of such a size that it is significant. When these effects can be registered in the bores, it shows that they occur in a particular area. 9.4.3.3 The time aspect The question of a reasonable time horizon for natural restoration must be related to the extent and character of the damage. The first prerequisite for damage as a result of extraction being restored naturally is that the effect has ceased. It is then neces-sary to look at the character of the damage which has occurred, and to what extent it can be restored naturally within a shorter time horizon. Damage to bodies of surface water and wetlands as a result of lack of inflow of water occurs generally only in the driest summer months, in practice from June to August. Damage which occurs outside this period, and where the effect in the groundwater store can no longer be seen in June, is normally not significant dam-age in relation to surface water or wetlands. Other conditions can however apply if Natura 2000 areas are concerned. When quantitative damage to groundwater is seen in a falling water table over a large number of years, it will as a rule not be possible to restore the pressure level of the groundwater over a short time horizon. If the fall in the water table has ceased, and the pressure level of the groundwater is restored to the natural level (within 0.5 to 1 metre) within one year after the cessation of excessive extraction, there is no question of significant quantitative damage. To what extent this will occur can only be determined by calculating or modelling, as the natural variations are of such a dimension that it would take a long time to show that the water table has been re-established. If quantitative damage has resulted in penetration of salt water into a groundwater store which is otherwise fresh, it will take several years before the salt water has been washed out again, and there is therefore a question of significant damage. With quantitative damage to groundwater it will always be necessary to look at whether the damage is also significant for connected bodies of surface water. The damage to these is evaluated as described in section 9.4.1. 9.4.4 Damage to the chemical status of groundwater

Damage to the chemical status of groundwater can be seen in increased content of more closely defined chemical compounds in the groundwater. The source of these substances can be actual pollution, but there can also be a question of changes to the quality of the groundwater caused by extraction. In this section, damage is de-scribed as pollution regardless of whether the limits being exceeded is due to in-flow of substances from outside, or whether it is a question of mobilisa-tion/movement of substances which were already present in the groundwater store.

93

9.4.4.1 The extent of the damage The starting point for evaluating whether there is a question of environmental dam-age in the sense of the Environmental Damage Act is an evaluation of the concen-tration of polluting substances combined with the extent of spread of the pollution and the time horizon for how long the pollution will be found in the groundwater store. Exceeding the limits by a small amount in a large area can, in practice, be a larger problem than exceeding the limits by a large amount in a small area, but in all circumstances it is significant whether there is a question of long-term pollution. The limits for nitrate and pesticide content of groundwater are set in the Ground-water Directive at 50 mg/l for nitrate and 0.1 μg/l for pesticides and decomposition by-products thereof, with a limit of 0.5 μg/l for the sum of pesticides and their deg-radation products. The Groundwater Directive also includes a requirement about setting threshold values for all substances which are the cause of one or more bodies of groundwater being at risk for not achieving good chemical status by 22 December 2015. The Groundwater Directive has not yet been implemented in Danish legislation, but the guidelines for the Ministry of the Environment's environment centres' preparation of threshold values is fixed in the Order on Environmental Objectives in the middle of 2008. The threshold values will be shown in the draft of the water plans which will be available no later than 22 December 2008. As well as the threshold values, the quality criteria for groundwater which are used in connection with cleansing polluted sites under the Land Pollution Act apply. A list of the quality criteria can be downloaded from the Environmental Protection Agency's website. The quality criteria for groundwater are fixed based on the inten-tion of extraction of drinking water. The principle is that the groundwater criteria cannot be set higher than the requirement for drinking water. For substances which are expected to be emitted from installations, such as certain metals, account is taken for these so the value in the groundwater must be lower than in drinking wa-ter. However, groundwater criteria are not set for naturally occurring substances such as iron or manganese which are removed in normal water treatment. However, the Water Framework Directive's definitions of good chemical status do not just cover the regard for drinking water. Poor chemical status can also be caused by the presence of substances which affect the condition of surface water and/or bodies of water corresponding to what applies for quantitative status. Until the threshold values are fixed for groundwater according to the Groundwater Di-rective, it will scarcely be possible to make decisions based on these considera-tions, and it is therefore recommended that the quality criteria mentioned for groundwater are used. The starting point for evaluating what is a significant reduction in the quality of groundwater will therefore be a transgression of the quality criteria or the threshold values for groundwater respectively, as these values are set based on the considera-tion for drinking water. There are only limited possibilities for dispensation from the drinking water re-quirements, and all dispensations are limited to a maximum duration of three years6. When dispensation is given, the highest permissible value for the parame-ters concerned must also be set, which is to be done according to the statement obtained from the National Board of Health. Guidelines about water quality and

6Cf. Order No 1449 of 11 December 2007 on water quality and inspection of water supply facilities

94

inspection of water supply facilities /12/also provide guidelines for the handling of pollution of drinking water by public authorities, but there are no guidelines about which substances dispensation can be given for, and how high the values that can be temporarily permitted are. Practice in this area has been that for the smallest water supplies, in particular indi-vidual water supplies, dispensation can be given for a nitrate content of between 50 and 100 mg/l. Furthermore, dispensation is primarily given for parameters which occur naturally such as arsenic and NVOC. Generally, the rules for dispensation for water supply facilities do not therefore give a basis for judging whether groundwa-ter pollution is significant. It should also be noted that because of streaming and spreading of pollution in groundwater stores (dispersion), pollution which consists of a limited transgression of the quality standards and which is not widespread, will relatively quickly be diluted to a level where it no longer transgresses the quality standards. 9.4.4.2 The size of the water resource affected A single occurrence of pollution which lies just over the limit will not be able to justify being called environmental damage. In order to decide whether there is a question of environmental damage it is necessary to look at the spread of the pollu-tion in relation to the concentration of polluting substances. According to the rules on municipal councils' reactions to established transgres-sions of quality requirements for drinking water, cf. Section 62 of the Water Sup-ply Act, there are special requirements for dealing with these by the municipal council when there is a transgression of the quality requirements in public water supply facilities, including private public water supply facilities which provide more than 3000 m3drinking water per year. Against this background, damage to water resources, which are not sufficient to form the basis for such water supplies, cannot as a starting point be regarded as potential environmental damage. A groundwater resource which forms the basis for extraction of 3000 m3of water a year will have a certain expanse. How large a land surface area it concerns, de-pends however on the formation of groundwater in the area concerned. The for-mation of groundwater varies in Denmark between less than 10 mm a year and more than 500 mm a year /3/. The physically smallest groundwater source where 3000 m3a year can be extracted is found in those parts of the country where groundwater formation is greatest. When having to determine whether damage to a groundwater resource is signifi-cant, it is, however, also reasonable to look at how large the affected groundwater resource is in relation to the overall resource in the area concerned. In an area with low formation of groundwater it is difficult to find an alternative if a given resource is polluted, whereas in areas with high formations of groundwater it will as a rule be possible to find alternative resources. In relation to bodies of surface water, the issue is the same, as the groundwater contribution to watercourses and wetlands is most often limited to areas with low formation of groundwater, but is large in areas with high formation of groundwater. To maintain the pressure level of the groundwater in the long term and thus to en-sure reasonable flow in watercourses, it is necessary to not extract the whole vol-ume of groundwater formed. In /3/,four indicators are put forward for sustainable extraction. The simplest indicator to use in this context is indicator 2 which shows that a maximum of 30% of the current groundwater formation for deep groundwa-ter stores may be extracted.

95

Based on these criteria, it is possible to calculate the area of the extent of the groundwater resource which is used as the basis for extraction of 3000 m3 a year, cf. Table 9.3. The values given in the diameter is a theoretical extent of the resource if it is assumed to have a circular spread. Table 9.3 The spread of a groundwater resource in relation to potential ex-traction

Potential extraction 3000 m3/year 350 000 m3/year Groundwater forma-tion

Area, hec-tares

Diameter, metres

Area, km2 Diameter, km

20 mm 50 800 58 8.6 50 mm 20 500 23 5.5 100 mm 10 350 12 3.8 200 mm 5 250 6 2.7 400 mm 2.5 175 3 2 Based on the above considerations, pollution of a groundwater resource with an expanse of less than 50 ha (0.5 km2) is not regarded as a significant damage to groundwater. However, pollution of a groundwater resource with an expanse of more than 5 km2 will often be significant damage to groundwater. To what extent there actually is a question of environmental damage depends on which polluting substances are concerned, how great the transgression is, and whether the pollution will disappear naturally within a short time, cf. above. 9.4.4.3 The time aspect Pollution of groundwater which has been overcome before the authorities can man-age to react to it, will in itself not be able to constitute environmental damage in the sense of the Environmental Damage Act. The same applies for pollution of groundwater which cannot be seen in repeated sampling. According to the guidelines about water quality and supervision of water supply facilities, it is not necessary to prepare a dispensation if the quality problems are of such a type that they can be resolved quickly, for example within 30 days. When pollution does not last longer than this, there is no question of environmental dam-age in the sense of the Environmental Damage Act. If the threshold values or the quality criteria for groundwater are exceeded for more than one year, and the pollution has an extent as described above, it is more likely that there is a question of environmental damage in the sense of the Act. For pollution which is expected to last between one month and one year, it is nec-essary to incorporate the size of the polluted groundwater resource and the levels of pollution. This is connected with the fact that the larger the resource the pollution affects and the higher the concentrations it occurs in, the greater the risk that it will lead to quality problems in the water supply facility or in associated bodies of sur-face water or wetlands. 9.4.5 Simultaneous damage to several types of water

If an incident simultaneously causes damage to bodies of water within several dif-ferent categories (watercourses, lakes, coastal waters and groundwater), then, as a starting point, the damage is evaluated for each of the individual bodies of water. If there is a question of significant damage for just one of them, cf. above, then there

96

is a question of environmental damage in the sense of the Environmental Damage Act. If there is no question of environmental damage in the sense of the Environmental Damage Act for any of the bodies of water involved, but the damage lies close to the criteria for several bodies of water described, it will be relevant to evaluate more closely whether the overall effect justifies the case being handled under the Environmental Damage Act anyway. The decision will however require specific evaluation in the specific case.

97

10 Environmental damage to land

10.1 Environmental damage to land in brief

Section 9 of the Environmental Damage Act sets out what is to be understood as environmental damage to land. - Environmental damage to land is hereafter understood as any land pollution as a result of direct or indirect introduction of substances, organisms or micro-organisms, in, on or under land and which leads to a significant risk of human health being adversely affected. Environmental damage to land is therefore characterised by

• Damage is any land pollution as a result of direct or indirect introduction of substances, organisms or micro-organisms, in, on or under land.

• The pollution is found in soil, from where it can affect human health. The limits of the term soil in this context are more closely described in section 10.2.

• There is a question of a significant risk of adverse effects on human health. It is a requirement that it can be documented that there has been (new) pol-lution of land. This is described further in section 10.4.

The land pollution identified must be a result of direct or indirect introduction of substances, organisms or micro-organisms, in, on or under land. This can occur directly when the substances, etc. are being placed on the land, buried or injected into the land or spread on the land, e.g. when the land is flooded by wastewater. This can occur indirectly, e.g. when the substances are falling onto the land (this can be substances which are emitted in the form of steam, after which the steam condenses and the substances fall to the ground in fluid form), or when the sub-stances, etc. are placed in or on the land in containers which leak or subsequently do so. For land pollution to be a consequence of substances, etc. being introduced to land means that naturally occurring increased concentrations of for example heavy met-als in soil, or increased concentrations of substances such as salt in soil, which have occurred as a result of inappropriate cultivation methods (exposure of sensitive areas, etc.) or climatic changes will not be land pollution which can be environ-mental damage to land. The fact that environmental damage to land must be a consequence of land pollu-tion means that damage to land and its functions, which are perpetrated in other ways, will not be environmental damage to land. Other damage to land, including damage to the structure of soil, reduction of the content of organic substances in soil, acidification or salting of land as a result of for example deforestation, consol-idation of soil, flooding or drying out are therefore not environmental damage to land, regardless of how adversely the damage may otherwise affect the land. Such

98

damage will however be able to lead to environmental damage to protected species and international nature conservation areas. With regard to the term land pollution in the applicable Land Pollution Act, the term is here expanded to include pollution caused by organisms and micro-organisms. Organisms cover in principle all living organic systems ranging from bacteria and plants to amphibians, birds and mammals of all types. Micro-organisms are those organisms which are so small that they can only be seen through a microscope. It is assumed that it will primarily be micro-organisms which will be able to give rise to land pollution which could be environmental damage to land. For example with the uncontrolled spreading of micro-organisms which are introduced to land, e.g. as part of pollution or pest control. Note also that environmental damage to land only covers land pollution which is significant for human health, i.e. that land pollution which exclusively constitutes a risk of pollution of groundwater or other parts of the environment is not regarded as damage to land. This damage can however lead to damage to nature or damage to water, cf. Chapters 8 and 9. Whereas environmental damage to nature is related to the EU Habitat and Bird Protection Directives and environmental damage to water to the Water Framework Directive, there are no equivalent EU Directives which define land, adverse effects to land or land pollution which involve a risk for human health, and which thus could be the basis for evaluating environmental damage to land. A framework Directive on land is being discussed in the EU, but until common EU rules for land pollution are available, the starting point for the interpretation of environmental damage to land is the provisions in the Environmental Liability Directive and the Danish implementation in the Environmental Damage Act. 10.1.1 Examples of situations where there can be environmental damage to land

Examples of damage to land, which can be environmental damage, can be:

• Land pollution from a large dry cleaner affects the indoor climate in nearby homes, so mechanical ventilation or other measures will be necessary. This type of pollution will often also lead to groundwater pollution which can be damage to water.

• Mucosa is accidentally delivered with illegal and large amounts of prob-

lematic substances to a field, and it turns out that the area will be unusable for cultivation of crops.

• A waste incineration plant's smoke purification system cuts out, and pollu-

tion of surface soil with heavy metals in excess of the cut-off criteria oc-curs in a nearby residential area.

• Oil pollution from a ship reaches a beach where there is a risk of affecting

many people.

10.2 The land as a natural resource

Environmental damage to land is damage to land as a natural resource. Environ-mental damage to land involves human use of the land being connected with a risk to health.

99

The protected resource, the land, must in this context be understood as that part of the Danish territory (the areas) which is not covered by the sea or other surface waters. The boundary between the sea bed and the land follows the basis line, i.e. the line which marks the starting point for fixing the Danish territorial waters. The bounda-ries between the seabed and watercourse beds and land follow the boundary of the bodies of surface water according to the Environmental Objectives Act. The soil underneath watercourses and lakes can in principle be covered, but in practice there will scarcely be any land pollution there which can affect human health. It is not significant whether there is a question of sand beaches, cliffs, chalk for-mations or what in everyday language is understood as land, in other words land which can be cultivated and which is made up of many organic and inorganic soil components, for example fields. The spatial extent of land covers thus the upper layer, the actual surface and the underlying layers regardless of the geological character of those layers, i.e. regard-less of whether the layers are for example cultivated layers or underground. Note that the definition of protected land is thus different in relation to the land which is covered by the Danish Land Pollution Act. The Land Pollution Act only covers pollution which is in or goes through land, where land is understood to be the layers of (quaternary) sediments which typically lie above the subsoil. The Land Pollution Act does not therefore cover pollution which may have occurred because of for example injection of substances into the subsoil. Pollution of the subsoil which has occurred because of for example injection of substances via bores into the subsoil are covered by the Environmental Protection Act. The protected land is thus not just the land near the surface which people can im-mediately come into contact with, but also land from where pollution can evaporate into the air which people breathe, and land at greater depths which people can come into contact with during excavation works, etc.

10.3 The risk to human health from land pollution

With regard to the Environmental Damage Act it is crucial whether pollution of land or the geological layers can lead to risks to human health. The risk to human health can occur with different types of effects from land pollu-tion:

• Ingestion of soil. For example, it is well known that small children who play outdoors ingest a certain amount of soil.

• Skin contact. Direct contact with soil can occur when playing, working in the garden, earthworks and many other types of activities.

• Inhalation. There can be a question of evaporated substances from land pollution, e.g. chlorinated solvents, or direct inhalation of polluted soil dust.

• Build-up of explosive gases such as waste dump gas which can lead to ex-plosions when it seeps into nearby buildings.

• Ingestion of polluted crops. If substances from land pollution are ingested in edible crops, there is a risk of affecting human health.

100

When judging whether a specific incident of pollution constitutes a risk to human health, a starting point can be made in the provisions of the Land Pollution Act regarding areas where there should be public focus (focus areas). According to Section 6, subsection 1, no 3, of the Land Pollution Act, the focus areas cover areas where there is pollution or sources of pollution which can have damaging effects on humans, on an area with

• homes, • childcare centres or • public playgrounds.

These areas are regarded as especially sensitive. Other sensitive areas are mentioned in Section 6, subsection 2, of the Land Pollu-tion Act. These are areas which are used for

• recreation areas, • areas accessible to the public, • allotments, • summerhouse sites or • institutions.

These areas cover all areas where people can come into direct contact with polluted land and a significant part of the areas where people can be subject to indirect ef-fects of pollution, e.g. through evaporation of polluting substances. Land pollution which constitutes a risk to human health can, however, also occur on areas which are not regarded as sensitive, and which are not publicly accessible. This applies for examples to business sites, where land pollution can lead to evapo-ration into the indoor climate and thus expose the staff to health risks. Investigations have shown that crops rarely absorb polluting substances from sur-rounding polluted land. The most significant risk for human health in connection with ingestion of crops which have grown on polluted land comes from soil on edible crops which has not been washed off.

10.4 Information about baseline condition

Environmental damage to land is pollution of land as a result of the introduction of substances or (micro) organisms to land or underground. To be able to evaluate whether the introduction of substances, etc. has actually occurred, it is necessary to be able to evaluate the condition of the land prior to the introduction of those sub-stances or organisms. 10.4.1 Starting point

As a starting point, the land must be regarded as being clean if there is no reason to assume that it has been polluted by human activity. If the land is assumed to be clean, there will not normally be any analysis of the content of the land regarding polluting substances or investigations into the specific content of organisms and micro-organisms available. It is therefore necessary to know the normal contents of various naturally occurring substances and (micro) organisms on land.

101

10.4.2 Clean land - content of substances

Areas of clean land have very different contents of naturally occurring substances, especially heavy metals, according to natural conditions. Furthermore, the content of substances can vary a lot over relatively short distances. A good starting point for evaluating the natural content of different substances on land are the values which are shown in /9/ as background levels. Furthermore, the Environmental Protection Agency's list of quality criteria for land, groundwater and air can be used, which can be found on the Environmental Protection Agency's website /4/. The quality criteria for land are not background values, but give levels which are not regarded as being polluting. Land which has not been surveyed as polluted according to the Land Pollution Act, and which is not included in an area classification, can still have an increased con-tent of certain substances which are normally regarded as being pollution. In part there can be a question of lightly polluted land, and also of polluting substances which for example are produced by plants. Lightly polluted land is no longer surveyed according to the Land Pollution Act after an amendment which entered into force on 1 January 20077. Lightly polluted areas are classified according to Section50 a of the Land Pollution Act. The area classification is undertaken by the municipal administration and is described more closely in section 10.4.4. As well as the pollution surveyed according to the Land Pollution Act and the area classifications, pollution can occur from natural sources:

• Chloroform can be produced in coniferous forests /5/ • Brackens can contain ptaquiloside, a poison which is acutely toxic, car-

cinogenic and mutagenic. The substance can be washed out into land and groundwater /7/.

• Thujone and thujaplicin are poisons which can be released and washed out from thuja and some herbs /7/.

Finally, in agricultural land and in former agricultural land, raised levels of heavy metals such as cadmium can occur. The substances can be introduced through in-tensive use of pesticides, e.g. in fruit plantations, or over many years of use of live-stock manure or artificial fertiliser which can have a high cadmium, copper and zinc content. If there is a suspicion that this is the case, it can be investigated more closely by investigating other nearby sites which are or have been connected with those sites (where environmental damage may have occurred) from a cultivation point of view. In connection with the surveys of polluted areas and decontamination of contami-nated sites, there are constantly sites which are deleted from the survey, either be-cause the surveys have shown that the site is not polluted, or because the pollution has been removed. On these sites, there is a certain amount of documentation for the site not being polluted. The local regional authority will in certain cases have this information available.

7Act No 507 of 7 June 2006 amending the Act on polluted land (modification of surveying of polluted areas, etc.

102

10.4.3 Polluted land

According to the Land Pollution Act, possible and established incidences of land pollution are surveyed. The survey has provided a lot of knowledge about the oc-currence of land pollution in Denmark. The survey according to the Land Pollution Act only covers pollution which is covered by the Land Pollution Act and land which is covered by the Act, cf. the limitations in section 10.1. This means that pollution with organisms and micro-organisms is not surveyed, and that pollution of the underground is not included. The survey work is handled by the regions which register polluted sites at two knowledge levels. The two knowledge levels are defined in Sections 4 and 5 of the Land Pollution Act as follows:

• A site is described as surveyed at knowledge level 1 if actual knowledge about activities on the site or activities on other sites which can have been the source of land pollution on the site has been provided.

• A site is described as surveyed at knowledge level 2 if a documentation has been provided which means that it can be determined with a high degree of certainty that there is land pollution of such a type and concentration on the site that the pollution can have damaging effects on people and the envi-ronment.

For sites which have been surveyed at level 1 (V1), the local region normally only has information about what type of activities can have led to the pollution, and thus what type of pollution can be expected, and to a certain extent where on the site the pollution can be expected to be found. If the local region or other regions are in the process of further surveys on the site, there can however be further information available about the extent of the pollution and its character. For sites which have been surveyed at knowledge level 2 (V2), the local region has information about the pollution found. However, the pollution is not necessarily surveyed and demarcated in detail. Pollution has now been found on approximately 20,000 premises and possible pol-lution also on approximately 20,000 premises. The surveying of land pollution and possible land pollution continues. There is a broad spectrum of pollution sources. Petrol and service stations and oth-er activities with oil/petrol constitute together with dry cleaners the largest groups which are the cause of surveys at V2. It must however be emphasised that the survey according to the Land Pollution Act has taken place in order to provide knowledge about the occurrence of land pollu-tion and the risks which can be connected with this pollution. However, the survey work does not include an actual description and evaluation of the pollution and possible pollution identified. The descriptions and evaluations of existing pollution are only available for a lim-ited number of sites and will typically be provided in connection with

• local regions' further investigations into pollution which is assumed to be able to threaten bodies of drinking water or human health through use of sites for particularly sensitive purposes,

• land owners' applications for permits for activities on the surveyed sites, including change of use of these sites to more sensitive purposes, or

• with surveys of pollution conditions on companies' sites, for example in connection with sale or insurance.

103

Information about to what extent property has been surveyed and found to be pol-luted can be obtained from the local region. Areas surveyed are also registered in the land register of the National Survey and Cadastre, which can be found on its website www.kms.dk. The local municipality often also has information, e.g. about whether there has previously been activity on the site which may have been pollut-ed. 10.4.4 Area classification - lightly polluted land

On 1 January 2007, several amendments to the Land Pollution Act entered into force, including the survey criteria for polluted land being raised so that lightly polluted land no longer has to be surveyed. Light pollution can be found in most urban areas, typically older ones. The lightly polluted land is often a result of dif-fuse pollution. The diffuse pollution has often come about over several years of dissemination, mixing or dilution of what causes the pollution, which stems from several sources such as vehicle emissions, smoke and dust emissions from industry, etc. The definition of lightly polluted land is fixed in the Order on the Definition of Lightly Polluted Land8. The substances and concentration levels in the Order are shown in Table 10.1. Table 10.1 Criteria for lightly polluted land, cf. Order on Lightly Polluted Land, 2006. Substance Content in dry matter,

mg/kg min. max

Lead 40 400 Cadmium 0.5 5 Chromium (except for chromium VI)

500 1000

Copper 500 1000 Mercury 1 3 Zinc 500 1000 PAH-total* 4 40 Benzo[a]pyrene 0.3 3 Di-benz(a,h)anthracene 0.3 3 * measured as the sum of the 7 PAH compounds : fluo-ranthene, benzo(b+j+k)fluoranthene, benzo(a)pyrene di-benz(a,h)anthracene and indeno(1,2,3-cd)pyrene

From 1 January 2008, an urban area is as a starting point classified as a lightly polluted area. The municipalities have the possibility of excepting areas within an urban area, or including areas outside an urban zone in the area-classified sites. The Environmental Protection Agency's guidelines about area classification /13/give more precise guidelines about this. The substances and concentration levels which characterise lightly polluted land are typically a result of what is known as diffuse pollution. Diffuse pollution often occurs due to spreading over a longer time period, mixing or dilution of the source of pollution which typically stems from several sources of pollution. Light pollu-tion can however also be a result of pollution from point sources, where spills or leakage have led to pollution in low concentrations. Finally, lightly polluted soil

8Order No 1519 of 14 December 2006 on the definition of lightly contaminated soil.

104

can be seen in filling material which has been collected from different areas where there have been minor polluting activities. The significant sources of diffuse pollution are related to site use for homes as well as businesses and industry and especially cover /13/:

• Building materials which have been spread through attrition, demolition by fire. In these cases, the residue from installations containing zinc, lead and copper can have been spread just as as tar-treated wood can have been bur-ied or burned.

• Smoke emissions from domestic heating, including wood stoves, have led to fall out in the vicinity of soot and ash containing tar substances (PAH compounds).

• Incinerator remains and other waste spread as soil improvement agents or used as a bearing layer in roads, paths and driveways.

• Pollution from traffic with lead from leaded petrol and tar substances from unburned diesel fuel as well as traffic dust from wear and tear to vehicles and asphalt surfaces containing tar.

• Emissions into the air from enterprises and industry and local spillage and waste dumps, especially dust and aerosols from gasworks, waste incinera-tion and metal processing industry have led to pollution with tar substances and heavy metals.

• Bonfire sites, garden fertiliser containing trace elements and fireworks. More precise descriptions of the sources can be found in the guidelines on area classification.

10.5 The extent and character of the damage

Land pollution is characterised by substances, organisms or micro-organisms which do not normally occur or occur in lower concentrations or amounts in the soil being identified, and that these occurrences of substances, etc. have or can have damaging effects in relation to the surrounding environment, including human health. As shown in section 10.1, there is only a question of environmental damage to land if the land pollution leads to a significant risk for human health being adversely affected. The Land Pollution Act distinguishes between on the one side pollution which constitutes a health risk, which can be handled by public endeavours in the form of advice, and on the other side pollution which constitutes such a risk that additional endeavours should be initiated. The distinction in the Land Pollution Act is used as far as possible as the starting point when having to evaluate whether there is a question of significant pollution. Land pollution which leads to a significant risk for human health is characterised by:

• The concentrations of polluting substances or the density of (micro) organ-isms.

• Exposure of humans, i.e. the number of people affected, the size of the pol-luted area and the length of time people are exposed to the pollution.

• Whether the pollution is permanent, or whether it is broken down naturally within a short time period.

The evaluation of these questions is described more closely in the following.

105

Based on the principle of proportionality, it may be determined that significant damage must have such a character, extent and a public interest for those other than those immediately affected, that it is reasonable in relation to the Environmental Damage Act's requirements for the competent authority's handling of environmen-tal damage, including in particular the requirements for complementary and com-pensatory measures for remedying damage to protected species and habitats and to water. A forthcoming EU framework Directive on land is expected to contribute further to the interpretation of what should be understood as a significant risk for affecting human health. In the latest proposal put forward for the Soil Framework Directive, there is a definition of pollution which includes all risks to human health - not just the significant risks - and the distinction between these types of pollution and soil pollution which constitutes a significant risk. On this basis it is assumed that the Soil Framework Directive will distinguish between on the one side pollution which involves health risks and on the other side pollution which leads to significant risk - and which are covered by the requirements of the Soil Framework Directive re-garding endeavours and by the term environmental damage. 10.5.1 Concentrations of polluting substances

Environmental damage to land can be chemical soil pollution, in other words pollu-tion with substances or mixtures of substances (agents) or biological soil pollution, i.e. pollution with organisms and micro-organisms. For pollution due to polluting substances, a soil quality criterion and a cut-off crite-rion are set in connection with the administration of the Land Pollution Act. These criteria are suitable for evaluating the direct contact risk in relation to skin contact and consumption of soil, in particular with regard to the use of sites by children. The soil quality criterion is a value which must ensure that the free and most sensi-tive use of land is responsible from a health point of view. Free and most sensitive use is for example in connection with private gardens, nurseries and playgrounds. Special consideration is taken here to the direct exposure of small children. As well as the soil having to meet the soil quality criteria, there is a general requirement that upon inspection, land must not appear polluted or give off any odour as a result of pollution. The cut-off criterion indicates the level above which complete cut-off from the land must be undertaken so that the population is not exposed to the polluted soil. The interval between the soil quality criterion and the cut-off criterion is called the advisory interval. If the pollution is within the advisory interval, the land may only be used for the most sensitive purposes as long as the local authorities advise the public and the landowners about precautions which can reduce the impact from the pollution so that the usual level of protection is maintained. The cut-off values are only set for certain immovable and relatively persistent chemicals (metals and pol-yaromatic hydrocarbons, PAH). Soil pollution where the concentration of pollution is below the soil quality criteri-on or in the advisory interval, is as a starting point not regarded as pollution which can cause environmental damage to land in the sense of the Environmental Damage Act. Soil quality and cut-off criteria are however not sufficient in relation to evaluating the effect of air which is breathed in by people. For that purpose, an air quality

106

criterion is set which expresses the contribution that evaporation from soil may as a maximum constitute by affecting indoor climate. The air quality criterion is used for administration of the Land Pollution Act purely to calculate the contribution to indoor air which stems from polluted soil. The value is therefore not an expression of an overall quality criterion for indoor air. In relation to evaporation from soil and effects on indoor climate, the transgression of the air quality criterion in homes or other buildings where people stay or work is crucial for whether there is a question of environmental damage to land. The quality criteria for the different media are independent of each other. All four criteria must therefore be met. For example, pollution is not automatically prob-lem-free in relation to evaporation into indoor climates or seepage into groundwa-ter just because the soil quality criterion is met. Soil pollution which only gives problems in relation to groundwater is regarded as groundwater pollution and should therefore be evaluated according to the criteria for groundwater which are described in Chapter 9. When evaluating whether soil pollution constitutes environmental damage to land, the starting point will be that the character of the soil pollution would involve any public endeavours according to the Land Pollution Act not being able to be re-stricted to advice, e.g. pollution in excess of the cut-off criteria set. In relation to any pollution with substances for which no fixed cut-off criteria are set, a specific evaluation must be made. In these cases, the starting point is the En-vironmental Protection Agency's guidelines on setting quality criteria for chemical substances /13/. As opposed to land pollution with substances, there is no practice for evaluating pollution with micro-organisms and other organisms. No cut-off criteria are set for pollution with micro-organisms and any other organ-isms so far. It will therefore be necessary to undertake specific evaluation of the effect on human health. 10.5.2 Exposure of humans

How large an area which has to be affected before there is a significant risk to hu-man health depends on what type of site is in question. As mentioned in section 10.2, all soil and underground areas are in principle part of the protected resource which is land. In practice, there is a significantly greater risk for pollution in surface soils affecting human health than is the case for deeper layers of soil and the subsurface. In deeper lying layers and the subsurface, pollu-tion will often lead to groundwater pollution and thus potential damage to water, cf. Chapter 9. The most significant starting point is an evaluation of to what extent humans will be subject to the effects of the pollution in normal visits to and use of the site. The site requirement is therefore lower for especially sensitive site use than for sensi-tive site use. For sites which are not regarded as sensitive, a specific evaluation must be undertaken. A significant risk of adverse effects on human health exists if the pollution affects:

• More than 10 homes. • Sites larger than 1 ha with sensitive or especially sensitive use, cf. Section

6 of the Land Pollution Act.

107

• Sites larger than 2.5 ha which are used for cultivation of crops. Definition of these sensitive and especially sensitive sites is given in section 10.2. The most restrictive criterion is used, which means that if there are more than 10 homes on a site smaller than 1 ha, it is the number of homes which is applicable, but if there are fewer than 10 homes on 1 ha, which is a residential area, it will be the size of the area which is crucial. On sites which are not sensitive but where people can be exposed to health effects from soil pollution as part of their work on the sites, there can also be a question of environmental damage to land. Sites which are not sensitive can for example be land used for business purposes, agricultural property and private forests without publicly accessible paths and roads. In these situations, the starting point can be taken that the soil pollution is envi-ronmental damage to land, if the Working Environment Authority would take ac-tion to ensure that any staff is not subject to effects of the pollution. Conversely, if the Working Environment Authority would not take any action, there is no envi-ronmental damage to land. For all cases of soil pollution, it applies that the affected area is not necessarily the same as the polluted area. In particular with evaporation and the spreading of gas and dust, large areas can be affected by the pollution. 10.5.3 The time aspect

Some incidents of soil pollution disappear by themselves over time. There can be a question of substances which are broken down by naturally occurring bacteria and other micro-organisms in the environment where they are found, or soil pollution which is washed out into the groundwater and thus ceases to be soil pollution, but instead becomes groundwater pollution. Combinations of these situations can also be found. For pollution with organisms or micro-organisms there can be a question of whether they are outmatched or die because they cannot survive in the soil envi-ronment. For pollution which has a limited "lifetime", approximately one year, it must be more closely evaluated whether it can constitute a significant risk to human health in the time period it is present in the environment. Furthermore, it is important to look at the time aspect of the natural breakdown or other natural removal of the pollution in relation to the time it would take to deal with the case under the envi-ronmental liability rules, including deciding which remedial measures should be taken in a particular case.

108

11 In particular regarding im-minent threat of environmental damage

11.1 When is there any imminent threat of environmental damage?

An imminent threat of environmental damage can occur in two ways:

• Either where the danger has arisen that a violent adverse effect on nature or the environment will occur which will be environmental damage, or

• where an adverse effect on nature or the environment has occurred and where the adverse effect will lead to environmental damage if no action is taken.

An imminent threat of environmental damage must be averted, cf. the regulations in the environmental damage chapters of the relevant Acts, for example Section 73 c of the Environmental Protection Act and Section 22 of the Environmental Dam-age Act. The environmental rules should however not necessarily be applied in the same way in the two situations described above. A more precise statement regard-ing this can be found in sections 11.1.2 and 11.1.3 below. It must be emphasised that the relevant laws regarding nature and the environ-ment already to a great extent include rules about obligations to avert and limit pollution and other adverse effects on nature and the environment. The supervising authorities have to a great extent also the possibility to order a polluter or another perpetrator of damage to, for example, remove the pollution immediately if there is a danger of it spreading significantly, etc., just as the supervising authorities them-selves can also be obliged to take action to avert significant pollution or dangers to health. It is thus expected that a very large number of the danger situations where it could, in principle, be relevant to evaluate whether there is an imminent threat of envi-ronmental damage, will immediately be dealt with such that only in very rare cases will it actually be relevant to evaluate whether an imminent threat of environmental damage has arisen. In this context, it must be emphasised that considerations about whether there is imminent threat of environmental damage or not must under no account delay or hinder the responsible polluter, etc. or the supervis-ing authorities from taking fast and appropriate action. If there is any doubt, the situation should be handled according to the rules applicable hitherto. 11.1.1 The definition of an imminent threat of environmental damage

An imminent threat of environmental damage is defined in Section 11 of the Envi-ronmental Damage Act. The definition in the Act is identical with the definition of an imminent threat of environmental damage in the Environmental Liability Di-rective and reads as follows:

109

"An imminent threat of environmental damage means a sufficient likelihood that environmental damage will occur in the near future."

The deciding factor for whether an imminent threat of environmental damage has arisen is thus whether a specific situation has arisen where there is sufficient likeli-hood that environmental damage will occur in the near future. A specific situation There is no imminent threat of environmental damage, since the operation of e.g. a polluting undertaking generally includes a certain risk of environmental damage occurring in connection with accidents or disruptions to operations of the undertak-ing. It is a precondition that specific events, incidents or omissions have led to an actual threat situation. Sufficient likelihood that environmental damage will occur It is thus not a requirement that it is completely certain that environmental damage will occur if no action is taken. On the other hand, it is not sufficient that the causal events, etc. involve there being a potential for an adverse effect occurring - and that this effect will then be envi-ronmental damage. And neither is it sufficient that as a result of the event etc. something definitely will occur - and that this could possibly be or become envi-ronmental damage. In each individual situation, it will depend on a wholly specific evaluation of whether there is an imminent threat of environmental damage, but it is important to be aware that the evaluation actually implies that it is possible to conclude that environmental damage can occur. In this context, it will be a crucial element in the evaluation that environmental damage is not "just" a large or seriously adverse effect on the environment or na-ture, but will be an adverse effect which strikes certain natural resources in a par-ticular way - environmental damage involves a significant influence on the favour-able conservation status for protected species or international nature conservation areas, or a significant influence on the condition of bodies of water covered by the Environmental Objectives Act, or land pollution which constitutes a significant risk for human health. This situation involves that determining that an imminent threat of environmental damage has arisen requires that it is possible with very great certainty to conclude what can or will happen if no action is taken. This will presumably very rarely be the case where there is only an imminent threat of an adverse effect on the envi-ronment or nature. The near future For it to be sufficiently likely that environmental damage will occur in the near future involves there not being a requirement for the threat of environmental dam-age having an "acute" character, even though the actual expression "imminent threat of environmental damage" could be understood as if the threat should in-volve immiment environmental damage. 11.1.2 Imminent threat of an adverse effect on the environment or nature

There can be an imminent threat of environmental damage in a situation where there is an immediate threat of heavy pollution or other adverse effects occurring.

110

Examples of such situations could be:

• By mistake, large amounts of corrosive acid are poured into the wrong container which is not sufficiently protected against corrosion. The con-tainer is placed outside immediately next to a watercourse. The acid con-tent will in a very short time have corroded holes in the container, after which large amounts of acid will flow out over the ground and into the wa-tercourse.

• A container ship runs aground and there is an immediate threat that the bunker oil will leak from it, and that extensive pollution of the coast will occur.

In both these situations there could theoretically be a question of such large amounts of polluting substances that an immediate threat of environmental damage was obvious, but the precise amounts could also be unknown, or the amounts could be known, yet it was not immediately possible to evaluate whether the pollution actually would lead to environmental damage. Both of these situations are however also marked by the fact that there will be an obligation to take action against the threat of pollution not just according to the environmental liability rules, but also according to the other applicable rules in the Environmental Protection Act and the Marine Environment Act. In those cases where immediate action is taken in a threat situation to avert pollu-tion or another adverse effect which could in principle be or become environmental damage, then neither before nor after should an evaluation be made about whether it was an imminent threat of environmental damage or just another significant pol-lution or adverse effect to be averted. 11.1.3 Imminent threat of environmental damage

There can be an imminent threat of environmental damage in a situation where an adverse effect on nature or the environment has occurred and where the adverse effect will develop into environmental damage if no action is taken. An example of such a situation could be:

• By accident, a large spill of chlorinated solvents occurs at a large dry cleaner. Extensive pollution of the soil under the dry cleaner occurs as a re-sult of drains that are not watertight. Because of the design of the buildings with concrete floors and crawlways as well as effective ventilation, the evaporation from the soil does not give rise to a problem with regard to the working environment, but there is an imminent threat of the soil pollution quickly leading to pollution of the groundwater and thus environmental damage to water.

In a situation like this, it must be evaluated whether the adverse effect - in this ex-ample soil pollution - constitutes an imminent threat of environmental damage. For how this evaluation can take place, see below in section 11.2.

111

11.2 Making a decision as to whether an imminent threat of envi-ronmental damage is present

11.2.1 The case-handling rules in Chapter 3 of the guidelines

The case-handling steps are essentially the same as when determining whether an adverse effect on the environment or nature is environmental damage that has to be dealt with according to the rules in the Environmental Damage Act. The starting point is therefore that the supervising authority identifies that a specif-ic situation has occurred where there is sufficient likelihood that environmental damage will occur in the near future, cf. the sections above. The supervising au-thority can then continue its evaluation according to the suggestion in Chapter 3. The cases where the case-handling steps deviate from the steps suggested in Chap-ter 3 are described below in section 11.2.2. 11.2.2 Special rules for judging imminent threat

11.2.2.1 No modification of absolute liability when permission is given In the case of an imminent threat of environmental damage which is caused by occupational activity, where there is absolute liability for environmental damage or imminent threat of environmental damage, there cannot be any modification of the absolute liability even though the imminent threat of environmental damage is a result of an expressly permitted effect, i.e. an expressly permitted emission or event. See section 3.4 if required. That absolute liability is not modified through the issuing of permission when there is a question of imminent threat of environmental damage is due to the fact that the Environmental Liability Directive does not open up the possibility of modifying absolute liability in this situation. This must be seen in the light of the requirements in the Directive and therefore also in the Danish environmental rules for measures which will prevent environmental damage being much less extensive than the re-quirements for remedial measures in the event of environmental damage. Preventive measures cover the measures which must be regarded as necessary to avoid an imminent threat of environmental damage resulting in environmental damage, or that environmental damage worsens. Such measures will not necessari-ly involve restoration of the baseline condition, but will in certain cases have to be limited to action which for example hinders the spread of pollution. In this context it should be noted, however, that to the extent more extensive measures could be ordered according to the law under which decision has been made that the adverse effects on natural resources involve an imminent threat of environmental damage, it will also be possible to order these measures to be under-taken according to the Environmental Damage Act, see Section 22, subsection 3, of the Environmental Damage Act. 11.2.2.2 Cross-border adverse effects Even though an imminent threat of environmental damage can affect other EU Member States, no decision should be made as to whether there is an imminent threat of environmental damage. This rule only applies where an adverse effect constitutes environmental damage.

112

12 References

/1/ Baattrup-Pedersen, A., Friberg, N., Pedersen, M.L., Skriver, J., Kron-vang, B. & Larsen, S.E. (2004): Application of the Water Framework Directive in Danish watercourses. The National Environmental Research Institute. - Specialist report from DMU 499: 145 p. (electronic).

/2/ The National Environmental Research Institute, 23 September 2004. Memorandum regarding the Water Framework Directive and watercourses: endeavours needed.

/3/ Henriksen, H.J. og Sonnenborg, A., GEUS (Eds). The circulation of fresh water. NOVA 2003 Subject Report. GEUS, 2003.

/4/ http://eur-lex.europa.eu/pri/da/oj/dat/2001/l_331/ l_33120011215da00010005.pdf. Localised on 22 February 2008.

/5/ Jacobsen, O.S., et al. Forekomst og naturlig produktion af chloroform i grundvand – Hovedrapport og Bilagsbind. Agency for Spatial and Envi-ronmental Planning, 2007. GEUS, Rambøll A/S, and DHI – Water and En-vironmental Institute 2007.

/6/ The Environmental Protection Agency's list of quality criteria in relation to polluted land. Localised 19 February 2008 på http://www.mst.dk/NR/rdonlyres/2EED6D00-3C69-486A-BED8-34B1FD527A8D/0/Kvalitetskreteriejord.doc

/7/ Rasmussen, L.H. et al, Institut for Grundvideskab og Institut for Plantebio-logi, KVL. Natural pesticides and groundwater Is future groundwater at risk of pollution from plants producing pesticides? Dansk kemi, 85, nr. 9, 2004.

/8/ Søndergaard, M., Jeppesen, E., Jensen, J.P. (editors), Bradshaw, E., Skov-gaard, H. & Grünfeld, S. (2003): Vandrammedirektivet og danske søer. Part 1: Søtyper, referencetilstand og økologiske kvalitets-klasser. The Na-tional Environmental Research Institute. - Specialist report from DMU 475: 140 p. (electronic).

/9/ Guidelines from the Danish Environmental Protection Agency No. 6, 1998: Oprydning på forurenede lokaliteter – Hovedbind.

/10/ Guidelines from the Danish Environmental Protection Agency No. 3, 2000: Zoning. Detailed survey of sites for the protection of groundwater resources.

/11/ Guidelines from the Danish Environmental Protection Agency No. 2, 2004: Basic analysis part one. Characterisation of bodies of water and judgement of effects.

/12/ Guidelines from the Danish Environmental Protection Agency No. 3, 2005: Water quality and inspection of water supply facilities.

/13/ Guidelines from the Danish Environmental Protection Agency NO 5, 2006. Methods for setting quality criteria for metal substances in soil, air and drinking water with regard to health protection.

/14/ Guidelines from the Danish Environmental Protection Agency No. 3, 2007: Area classification.

/15/ Villumsen, B., Ullum, M. og Martinez, K. Revision af udpegningen af grundvandsforekomster i Danmark. Working report from the Danish Envi-ronmental Protection Agency No. 6, 2007. COWI, 2007.

/16/ www.miljoeportal.dk/Arealinformation/