LA PROTECCIÓN DE LA MADRE TIERRA, ADAPTACIÓN ANTE EL CAMBIO

A government authority or municipality, in accordance with chapter 6, section 7 of the Civil Protection Act, is obligated to participate in emergency response opera- tions upon the request of an incident commander with personnel and property. However, such obligation only applies if the authority or municipality has appro- priate resources and if involvement will not seriously hinder normal operations. The provision applies for involvement in the event of clean-up after the emission of radioactive substances.

This provision was enacted through the Rescue Services Act of 1986. It has no counterpart in previous fire services acts or in other legislation associated with the fire service. It should be noted, however, that a provision for so-called firefighting assistance between the municipalities was enacted in the Fire Services Act from 1944. According to section 9 of the Fire Services Act from 1944:

Upon notification by the head of a fire brigade in a municipality, where a fire that has become or threatens to become widespread, another municipality is obligated to provide firefighting assistance to the degree that the head of the fire brigade in this municipality deems reasonable without jeopardising the safety of the assisting municipalities.

This provision was retained in the Fire Services Act from 1962 and in a somewhat modified form in the Fire Services Act from 1974.

The intention of this present provision on involvement in emergency response operations was to enable emergency response operation resources to be used more effectively. Many government and municipal authorities that are not responsible for fire brigades or clean-up of radioactive substances have significant resources that they use in their operations and that can be of importance during an emergency response or clean-up operation. The provision enables these resources to be used. (Prop. 1985/86:170, beginning on page 81 and Prop. 2002/03:119, page 120)

The obligation to participate in operations with personnel and property does not app- ly if involvement seriously hinders the authority’s normal operations. In the prelimi- nary work for the Rescue Services Act from 1986, the department head wrote that:

Requisitioning of other authorities’ resources can naturally not be conducted without restrictions. It is my opinion that it should not be required that an authority participate in emergency response operations if involvement would seriously hinder normal operations. It should be up to the authority to determine whether this is the case. (Prop. 1985/86:170, page 45)

We should thus note that it is the individual authority and not the incident com- mander that determines if involvement in emergency response operations seriously hinders normal operations. At the same time, it should be noted what was written in the Fire brigades Committee’s comments prior to the Rescue Services Act from 1986.

When an incident commander requests assistance from various

government or municipal authorities and bodies, requests for assistance shall not be denied unless the operations of the authority receiving the request absolutely (author’s italics) prevent this. The matter of whether assistance shall be provided or not shall not be dependent on whether or in which form reimbursement will be made for the emergency response operation. (SOU 1983:77, page 547)

Can we find any general criteria for when an authority can refuse to participate in an emergency response operation? We can look at what was written on this subject in the preliminary work for the Civil Protection Act:

The obligation to participate in operations with personnel and property does not apply, however, if involvement seriously hinders the authority’s normal operations. It is impossible to specify this more precisely in a general rule. There must be a weighing in each case between a

government authority’s or municipality’s needs for resources for its own operations and the capability to contribute with resources during an emergency response operation or during clean-up operations. (Prop. 2002/03:119, beginning on page 120)

We can thus not establish any general criteria for how an authority is to act upon recei- ving a request from an incident commander for involvement in a specific situation.

Can a government authority or municipality that is requested to participate thus make tactical considerations as to whether the emergency response operation is sufficiently extensive that involvement is actually needed, or whether the incident site is too distant for assistance to arrive within a reasonable time and similar fac- tors? Prior to enactment of the previous provision on firefighting assistance it was stated that such assessments should be made by the chief fire officer for the fire brigade in the municipality where the fire is underway (SOU 1942:10, page 84). Furthermore, we can see that it is stated there that:

Should the deputy chief fire officer have the right to assess the suitability of sending assistance based on factors other than the issue of what the safety of his own municipality can permit, there is the risk that the procedure would become too complex, which could entail that the purpose of mutual assistance would not be fulfilled (paragraph A and in Prop. 1944:265, page 63).

Lastly, we should also note that it is the authority or municipality that takes part. The personnel that the authority or municipality participates with are not ‘extrac- ted’ from their ‘home organisation’, but rather continue to work in their own government authority’s or municipality’s organisation.

It is also important to observe that an incident commander’s right to request involvement in emergency response operations does not apply to businesses. Howe- ver, there is nothing that prevents a fire brigade, on a civil law basis, entering an agreement with a business having resources needed in emergency response opera- tions. Moreover, the incident commander can use his or her power to infringe upon the rights of others and to request the execution of official duty.

Additionally, there are no formal legal grounds for an incident commander to request assistance in, for example, health and medical services in conjunction with emergency response operations.