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Legal defences: Pollution

Regulation 40 of the EPR provides a defence if fire and rescue service actions cause pollution in England and Wales. This is based on three criteria:

  • The discharge was made in an emergency to avoid danger to human health
  • The person takes all steps as were reasonably practicable for minimising pollution
  • Particulars of the acts were furnished to the regulator as soon as reasonably practicable after the pollution occurred

All three criteria must be in place for a defence to succeed.

In Scotland, defences to principal offences are detailed in Regulation 48 of the Water Environment (Controlled Activities) (Scotland) Regulations (as amended). There is a defence where the contravention is a result of:


(i) an accident which could not reasonably have been foreseen; or

(ii) natural causes or force majeure which are exceptional and could not reasonably have been foreseen; and


(i) all practicable steps are taken to prevent deterioration of the water environment;

(ii) all practicable steps are taken as soon as is reasonably practicable to restore the water environment to its condition prior to the contravention; and

(iii) particulars of the contravention are furnished to the Scottish Environment Protection Agency as soon as practicable after it occurs

In Northern Ireland, defences are detailed in Article 7A (Exceptions) and 7B (Discharges into and from Public Sewers) of the Water (Northern Ireland) Order. Article 7A specifically states:

A person shall not be guilty of an offence under Article 7(1), (2) or (6) in respect of the discharge or deposit of any effluent or other matter if:

  1. The discharge or deposit is made in an emergency in order to avoid danger to life or health;
  2. That person takes all such steps as are reasonably practicable in the circumstances for minimising the extent of the discharge or deposit and of its polluting effects; and
  3. Particulars of the discharge or deposit are furnished to the Department of the Environment as soon as reasonably practicable after it occurs

Due to the partnership initiatives and protocols that have developed between the fire and rescue service and the environmental agencies, if they have fully implemented them the fire and rescue service should be able to demonstrate that they have taken many of the practicable steps required in advance for these defences to apply. For example, they should be equipped, trained and have plans in place which ensure that they have already gone some way to mitigating pollution events before they happen, without compromising the fire and rescue service’s duty to protect people. Examples of these initiatives include:

  • Joint training of firefighters and environmental officers locally and at national training establishments
  • Development of local working agreements based on the framework set out in the MoU between the Environment Agency and the National Fire Chiefs Council, and other devolved authority equivalents
  • Provision of pollution control equipment including grab packs for pumping appliances and high volume pumps (HVPs), and larger scale or specialist pollution control equipment for fire and rescue service Environmental Protection Units
  • Development of an environmental section within operational risk information and other plans, including those with partner agencies
  • Implementing National Operational Guidance