guest post

Guest post: Fracking – the regulatory gaps

Guest Post by Joanne Hawkins

JoHawkinsRegulation is a central issue in the shale gas debate. Yet, it has received very little in depth attention, with many reports and political statements assuming the presence of a ‘robust regulatory system.’ In this guest post, Joanne Hawkins discusses some of the key issues with the current system of controls in the UK.

The current controls and environmental safeguards applicable to shale gas exploration using hydraulic fracturing are those used to govern the conventional oil and gas sector. Further details of the regulation and a regulatory road map can be found on the Department of Energy and Climate Change (DECC) website.[i]

Before engaging with some of the gaps that emerge when this regulation is applied in the specific context of shale gas exploration and fracking it is important to note that the existing regulatory framework is well developed.

Regulatory experience from the conventional sector is of significant importance and this post does not attempt to undermine the basic value of such a regulatory system.

However, the application of such a system to a new industry is not a seamless process and gaps in the regulation are visible. These gaps stem largely from uncertainty surrounding if/how current regulations apply and from the presence of inappropriate application thresholds. Again, it is important to note the value of best practice guidance on shale gas exploration from industry members. However, the voluntary nature of such guidance means that it is legally unenforceable and as such cannot guarantee regulatory gaps are filled.

Attention needs to be drawn to the problems in the current regulatory system if the risks of fracking are to be considered in context. The gaps and uncertainties that emerge can be seen in areas relating to chemical use, water, waste, emissions, environmental liability, environmental assessment and planning.

Chemicals

REACH and Environmental Release Category (ERC)

Under REACH (the regulation on Registration, Evaluation, Authorisation and Restriction of Chemicals) registration of new usages of chemicals (such as in hydraulic fracturing) by downstream users (i.e. users of chemicals in an industrial process/shale gas operators) is required. Despite the ‘new use’ of chemicals during fracking, an assessment of registration dossiers in 2013 found that the new use of chemicals in hydraulic fracturing was not explicitly mentioned in any registrations.[ii]

In addition, even if this registration requirement had been complied with there is an issue with the current Environmental Release Categories (ERC) available under REACH. These categories ensure that the relevant risk assessment/ management procedures are considered for a chemical in its new use, this includes consideration of potential exposure scenarios. At present there is no ERC that suitably describes the way in which chemicals are used in fracking. This means that the controls on chemical use which REACH offers cannot operate effectively. The recent EU Recommendation (on minimum principles for the exploration and production of hydrocarbons (such as shale gas) using high-volume hydraulic fracturing) emphasised that the registration of chemicals used in fracking is required, but it did nothing to address the inappropriate descriptors and models currently available in the registration process.[iii]

 Water

Groundwater permits

There is no guarantee that a borehole passing through groundwater will require a permit under the Environmental Permitting Regulation. [iv] This is due to the categorisation of many chemicals used in drilling muds and fracturing fluids as non-pollutants (pollutants being defined as any substance liable to cause pollution, in particular those listed in Annex VIII of the Water Framework Directive (WFD)). [v] This means that their direct injection into groundwater is not controlled despite the fact this injection may ultimately impact on groundwater quality and aquifers.

Notably however, the baseline monitoring requirements implemented by s50 of the Infrastructure Act 2015 mean that a consent to hydraulically fracture will not be awarded unless the level of methane in groundwater has, or will have, been monitored in the period of 12 months before the associated hydraulic fracturing begins. Where established, these baselines are then used to produce a ‘site condition schedule’ against which permits and monitoring can be based. Building on this monitoring, the British Geological Society (independent of regulators and industry) is in the process of collecting baseline data on air quality, surface-water quality, soil gases and ground motion in the Fylde, Lancashire, where Cuadrilla are planning to explore and in the Vale of Pickering, Yorkshire, where Third Energy are planning to explore.[vi]

Water abstraction

Water abstraction controls maintain water quality by limiting the amount of groundwater which an operator can extract for industrial purposes. [vii] Such controls do not operate if water is sourced from a local utility provider (as has been the case to date). Accordingly water supply moves beyond legislative controls becoming an issue of utility provider policy on water allocation and priority.

Emissions

Industrial Emissions Directive[viii]

There is uncertainty over whether the Industrial Emissions Directive (IED) will apply (shale gas and fracking not being a mentioned activity and not necessarily qualifying under hazardous waste/combustion capacity criteria). This brings into question if a permit under the IED will be necessary.[ix] If no such permit is applicable, IED monitoring requirements of emissions to air, water and land, including measures concerning waste may not be applied.

Best Available Techniques Reference Documents (BREFS)

Even if the IED does apply no Best Available Techniques Reference Documents (BREF) exist for drilling equipment. A BREF document is a Best Available Techniques (BAT) reference document resulting from the exchange and organisation of information regarding BAT. This is drawn up for specific activities and describes applied techniques, present emission and consumption levels, the BAT conclusion and any relevant emerging techniques. In the absence of a relevant BREF there may be increased local air pollution during drilling. There is also an absence of emission limits for non road mobile machinery above 560kW if used on fracking sites.[x]

Waste

Best Available Techniques Reference Documents (BREFS)

No BREF documents exist for the treatment of waste from hydraulic fracturing. Notably, the EU Commission has pledged to review the BREF on extractive waste in light of fracking operations but until this is done operations will continue without the relevant BREF.[xi]

Notably, the absence of a BREF for exploration related activities and fracking has been noted and proposals are in place to also design a new BREF document for hydrocarbons. This will focus on the development and operation of the onshore well pad (including directly related activities such as onsite storage). The BREF will focus on BAT to manage impacts of releases of pollutants and best risk management techniques to manage risks of releases of substances as a result of incidents. [xii] At present however, such a document is unavailable (and has been criticised by the UK Government as unnecessary) and if the proposal develops is not expected to be available until May 2018.[xiii]

Mining Waste Directive[xiv] (MWD)

The MWD should govern the way in which waste from fracking operations is dealt with. However, it is not clear whether fracturing fluids that remain underground whilst the site is still active will/will not be discarded for the purposes of the directive. As such they may only be subject to Directive controls and requirements when operations at the site are suspended or wells abandoned (suspension/abandonment may not be for a period of years after a site is established).

Environmental Impact Assessment

The Environmental Impact Assessment (EIA) Directive ensures that projects likely to have a significant impact on the environment are subject to a full environmental assessment prior to development. However, exploratory sites can fall short of the national threshold, 1 hectare or the extraction of more than 500,000 cubic meters of gas per day, meaning assessment is discretionary rather than mandatory.[xv] This has also has implications for health as the Health Protection Authority will only undertake an assessment upon an approach by the Local Authority or as part of the EIA process.

Environmental Liability

The EU Environmental Liability Directive (ELD), operating on the polluter pays principle, imposes strict liability for activities classed as dangerous and listed under Annex III. [xvi] At present shale gas operations are not included, meaning that fault or negligence is required to attribute liability for environmental damage. There has been great difficulty in the US in attributing responsibility for claimed environmental damage from fracking operations.[xvii] The implementation of compulsory baseline monitoring (under the Infrastructure Act 2015) of groundwater and seismicity should help in establishing the causal link for such damage (should it occur).

Operator default

At present, shale gas operators are subject to a financial viability and financial capacity test by the Oil and Gas Authority when PEDL licences are applied for. These are aimed at ensuring companies ‘will continue in sound financial health for the foreseeable future’ and may require guarantees from parent companies.[xviii]

In considering the remediation of sites, whilst s106 agreements between operators and Local Authorities can be used to impose planning obligations to cover remediation, the current onshore oil and gas planning guidance highlights the imposition on landowners of a duty to restore the site if the operator defaults. [xix]

Planning

There is a presumption within the current onshore oil and gas guidance that when granting planning permission ‘all other regulatory controls are to be considered fully functional and effective.’ Although a well developed existing system of controls is in place, this assumption emphasises the need to ensure that the regulatory gaps that are present within it are recognised and addressed. If this is not done such a presumption risks undermining the system of environmental safeguards.

Regulatory agencies

When considering environmental safeguards the role of regulatory authorities does require attention with Public Health England having called for further research into agencies analytical capacities to monitor the shale gas industry.[xx] In addition consideration needs to be given to how regulators will comply with the recent EU Recommendation (on the Minimum Principles for the Exploration of Shale Gas) requirement for regulators to maintain the distinction between their ‘regulatory’ functions and their function relating to economic development of resources.[xxi] This is particularly the case with the planning guidance stressing the importance of mineral extraction for both local and national economies as a relevant planning consideration.

It is clear that whilst the regulatory controls that currently govern shale gas exploration provide a well developed basis, a number of regulatory gaps and uncertainties remain. Recent action, such as the introduction of baseline monitoring in the Infrastructure Act and the proposed reform of BREF on both extractive waste and hydrocarbons suggests that there is a gradual recognition of the need to acknowledge that the current system does not offer comprehensive regulatory coverage. This is a welcome recognition, but further action is required to close the all the gaps currently present in the system.

For further detail on the above gaps and uncertainties see J Hawkins ‘Fracking: Minding the Gaps’ (2015) 17(1) Environmental Law Review 8

Biography

Joanne is currently working on a PhD thesis at the University of Bristol and will be taking up the post of lecturer at the University of Leeds in January 2016. Her research explores issues of regulation surrounding shale gas and fracking and the role of public participation and expertise in regulatory decision making.

Footnotes

[i] Department of Energy and Climate Change ‘ Providing Regulation and Licensing of Energy Industries and Infrastructureand Maintaining UK Energy Security ‘ (gov.uk) https://www.gov.uk/government/publications/regulatory-roadmap-onshore-oil-and-gas-exploration-in-the-uk-regulation-and-best-practice

[ii] JRC Scientific and Policy Reports, Assessment of the Uses of Substances in Hydraulic Fracturing of Shale Gas Reservoirs under REACH, EUR26069EN (September 2013) 38

[iii] Commission (EC) Recommendation 2014/70/EU (OJ L39/72 22.01.14) on the exploration and production of hydrocarbons (such as shale gas) using high-volume hydraulic fracturing in the EU, COM 23 Final (22 January 2014) Rec 10.1

[iv] European Parliament and Council Directive 2006/118/EC (OJ L372/19 12.12.06) on the protection of groundwater against pollution and deterioration; The Environmental Permitting Regulations 2010 (SI 2010 No. 675); The Water Environment (Water Framework Directive) (England and Wales) Regulations 2003 (SI 2003 No. 3242)

[v] European Parliament and Council Directive 2000/60/EC (OJ L327/1 23.10.00) establishing a framework for community action in the field of water policy

[vi] British Geological Society ‘Shale Gas and Environmental Monitoring’ Available at: http://www.bgs.ac.uk/research/groundwater/shaleGas/monitoring/home.html

[vii] The Water Resources (Abstraction and Impounding) Regulations 2006 (SI 2006 No.641)

[viii] European Parliament and Council Directive 2010/75/EU (OJ L334/17 24.11.10) on industrial emissions (integrated pollution prevention and control); IED is triggered if flaring more than 10 tonnes a day

[ix] M. Broomfield Support to the Identification of Potential Risks for the Environment and Human Health Arising from Hydrocarbons Operations Involving Hydraulic Fracturing in Europe. Report for European Commission, DG of Environment AEA/R/ED57281 (10 August 2012) xii

[x] European Parliament and Council Directive 97/68/EC (OJ L59/1 16.12.97) on the approximation of the laws of the member states relating to measures against the emission of gaseous and particulate pollutants from internal combustion engines to be installed in non-road mobile machinery; Machinery (Emission of Gaseous and Particulate Pollutants) Regulations 2008 (SI 2008 No. 2011)

[xi] Commission Staff Working Document, Impact Assessment to Accompany Communication from the Commission to the European Parliament, The Council, The European Economic and Social Committee and the Committee of the Regions on Exploration and Production of Hydrocarbons (Such as Shale gas) Using High Volume Hydraulic Fracturing in the EU, SWD 21 final (22/01/2014) 42

[xii] EU Commission ‘Energy and Environment: Hydrocarbon BREF’ Available at: http://ec.europa.eu/environment/integration/energy/hc_bref_en.htm

[xiii] Arthur Nelson ‘UK backing bid by fossil fuel firms to kill new EU fracking controls, letters reveal’ The Guardian (London 10 September 2015) Available at:
http://www.theguardian.com/environment/2015/sep/10/uk-backs-bid-by-fossil-fuel-firms-to-kill-new-eu-fracking-controls-letters-reveal

[xiv] European Parliament and Council Directive 2006/21/EC (OJ L102/15 15.3.06) on the management of waste from the extractive industries and amending directive 2004/35/EC

[xv] European Parliament and Council Directive 2011/92/EU (OJ L26/1 13.12.11) on the assessment of the effects of certain public and private projects on the environment, Annex II

[xvi] European Parliament and Council Directive 2008/98/EC (OJ L312/3 19.12.08) on waste and repealing certain Directives; European Parliament and Council Directive 2004/35/EC (] OJ L134/56 21.04.04) on environmental liability with regard to the prevention and remedying of environmental damage

[xvii] B. R. Nicholson and S. C. Dillard   ’Analysis of Litigation Involving Shale and Hydraulic Fracturing: Part 1’ (2013) International Energy Law Review 50

[xviii] Oil and Gas Authority ‘UK Petroleum Licensing: Financial Guidance’ Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/455523/FinancialGuidance.pdf

[xix] Department for Communities and Local Government, Planning Practice Guidance for Onshore Oil and Gas (July 2013) 17 para 73, 76; Town and Country Planning Act 1990, s106

[xx] Public Health England, Review of the Potential Public Health Impacts of Exposure to Chemicals and Radioactive Pollutants as a Result of Shale Gas Extraction: Draft for Comment, PHE-CRCE-002 (October 2013) 33

[xxi] Commission (EC) Recommendation 2014/70/EU (OJ L39/72 22.01.14)on the exploration and production of hydrocarbons (such as shale gas) using high-volume hydraulic fracturing in the EU, COM 23 Final (22 January 2014) at rec. 13.2

13 replies »

  1. An interesting article Joanne and hopefully you will add to your current insights into what is at play in terms of how regulatory frameworks are being made to serve only corporate greed, whilst taking away the rights and entitlements of the rest of us who have no trust in such a lopsided system. I have made some comments in relation to headings in your piece which hopefully will add to what you have already written.

    Planning

    There is a presumption within the current onshore oil and gas guidance that when granting planning permission ‘all other regulatory controls are to be considered fully functional and effective.’ Although a well developed existing system of controls is in place, this assumption emphasises the need to ensure that the regulatory gaps that are present within it are recognised and addressed. If this is not done such a presumption risks undermining the system of environmental safeguards.

    The dangers of considering all other reg controls fully functional and effective has already been put to the test and failed and are unfit for purpose as proven in the latest VW et al emission scandal. It took a US body to scream foul, while the Uk body decided to whisper that it knew the cars were giving more emissions than lab tests proved. Yet they stood back and did nothing about it. WHY?

    UK governance of illegal gas emissions has not delivered due diligence it proudly boasts when industries such as fracking, wildly claimed by those with vested profit interests as a safe way of extracting gas under ” the best regulated industry in the world”’ are about to be rolled out gung ho across the north, when the enforcement of rules over toxic pollutants from cars has NOT been delivered by the same people who will be scrutinising gas emissions from fracking. This gives the lie to the UK regulatory regime being the best in the world, as well as telling us when profit rules, decency and the laws get thrown out of the door.

    We have NO WAY of taking to task these ineffective government bodies and they know it, and time and again they fail in their duty with NO accountability whatsoever.

    Water

    Quoted from

    http://ec.europa.eu/environment/integration/research/newsalert/pdf/chemical_composition_of_fracking_wastewater_404na4_en.pdf

    ”Wastewater produced by hydraulic fracturing,or ‘fracking’, has been chemically analysed in the most comprehensive study of its kind to date. The researchers found that produced water from three US fracking sites contained a diverse array of chemicals including toxic metals such as mercury and the carcinogens toluene and ethylbenzene. However, a group of harmful chemicals, ‘polyaromatic hydrocarbons’ commonly found in mining and coal extraction wastewater, were absent. Fracking involves pumping fluid underground at high pressure to break open shale rocks, releasing natural gas. The initial fracturing fluid is made up of water and sand with additional chemicals; however, some waste water, known as ‘produced water’, flows back to
    the surface after fracturing. Produced water can contain a complex mixture of metals, salts and other chemicals, partly composed of the original fracturing fluid components, but also of chemicals released by
    the rocks in the area.There is widespread concern about the large volumes of water used for fracking and the effects of the wastewater on human and environmental health. How best to treat the wastewater depends on the specific types of chemical contamination present. For this study, the researchers took samples of produced water from three fracking sites in the US. They then used a number of different analysis techniques to determine the chemical composition of the samples, although not the concentrations of the different organic (carbon based) constituents.
    A wide range of metals were found in all samples, but varied depending on the geology of the area. Among these were chromium, mercury and arsenic, all of which were found at
    levels exceeding US maximum contamination levels for drinking water in at least one well. Over 50 different organic chemicals were identified, the majority of which were part of a group of chemicals called ‘saturated hydrocarbons’. Many of these were common to more than one well. They included the carcinogens toluene and ethylbenzene. However, the researchers did not find polyaromatic hydrocarbons, which are usually found in mining and coal extraction wastewater.

    ‘Halogenated hydrocarbons’ a group of chemicals containing elements such as chlorine and bromine were found in all samples. These compounds can cause damage to the nervous system and the liver. The study’s authors suggest these were generated by reuse of fracking wastewater that has been treated with chlorine containing antibacterial chemicals, a common practice. However, it is not yet clear if the creation of halogenated hydrocarbons from antibacterial chemicals occurs during treatment of wastewater or during reuse. This will need to be confirmed in future research. [and is one key reason for delivering a full moratorium until this is clarified]The authors believe that detailed chemical analyses of produced waters, such as theirs,
    highlight problems in wastewater treatment protocols, in particular, the problem of developing a process that removes a wide range of organic compounds.While the findings of this research are based on fracking sites in the US, they may also be useful for other regions where fracking is being actively pursued, such as the UK, and could help to develop policies and techniques to reduce the risk of environmental contamination.”

    Given the EU has only gone thus far in understanding the lessons in the US, and concludes with a weary ‘we will watch what happens in the UK,” I find it alarming that none of the above dangers flags mentioned have been taken on board at Yorkshire Water after consulting them over a lot of telephone calls.
    They know they will profit from selling off unused water abstraction licenses (circa 2013 Water Act they now have to become globally competitive) and although limits may be regulated, these have not been clearly defined or identified therefore not regulated for properly. There seems little to no scrutiny of who is adhering to the free for all abstraction limits from rivers and in Cumbria this could be why for example Coniston is ever lowering with water feeding it being more heavily abstracted than should be.

    I believe and reported to the public consultation by the EA, it should be mandatory for enforcement officers and industry officials to be clearly named so that all stages the public can be assured each is doing the job required at each stage, and is fit to do that job with proper training, otherwise we get into the never-never land of no one being responsible and ”we must have a public enquiry,” when lessons that are clear now should be incorporated into the legislation and regulatory framework accompanied by relevant enforcement which always is lacking due to the euphemistic ”lack of available funds’

    The fact that noxious chemicals are prevented from polluting surfaces above them is crucial to understanding the dangers of fracking. It is those noxious substances, some of which are currently unknown or even identified, and lie beneath shale and other rock stratas, that pose the biggest threat to the environment and the water supplies, as well as to livestock and farmland once they surface due to no regulation stipulating that where unknown or unidentified noxious pollutants may be released and potentially cause environmental hazards, all activity should be ceased that would release them. Taking risks with unknown pollutants and damaging forever the rock face that currently captures them, could cause extensive dangers for millennia to come unless the regulatory framework acts to prevent widespread risky lateral drilling.

    As for wastewater I don’t believe any water company is equipped with full lists of chemical pollutants that should be filtered out in waste or other water processing, and would like the regulatory framework to come clean about those not on the current list that should be if fracking begins. I also want a clearer list from the EA regarding pollutants known to affect land mass, which the EA DWI tests for and all water authorities are told NOT to test for. Regulations should make this standard public information, but where is it published?

    The warning is not necessarily just those chemicals used by frackers, it is those released from cavities underground, and which even geologists have no idea will be encountered once fracking begins.
    There seems also to be a cavalier approach that imagines once regulations are set in stone all will follow them. You only have to look at the fact that Monsanto was called back to clear up dumped toxic waste–aka agent orange– in Wales, on land privately owned, but used as a hazardous waste dumping site, to see that you can write as many regs as you like but without proper scrutiny for serious hazardous situations, making a fast buck takes precendence over due regulatory adherence, with profiteers willing and capable of playing cat and mouse with regulatory bodies in the hope they will get lucky and get away with violations, leaving the rest of us to pay for generations to come.

    The implicatons for planning are also unclear when it comes to boundaries and borders. Water does not keep to man made Water Industry boundaries, and as we see in some southern counties with emergency services, there is a lack of cogency regrarding which agency is responsible for what emergency when 999 is called. If emergency situations cannot be properly regulated then how are water industries going to be held accountable if underground waterways carry pollutants cross border?

    Operator default

    ”In considering the remediation of sites, whilst s106 agreements between operators and Local Authorities can be used to impose planning obligations to cover remediation, the current onshore oil and gas planning guidance highlights the imposition on landowners of a duty to restore the site if the operator defaults. [xix] ( #_edn19 )”

    You touch upon an important issue here that still needs proper scrutiny from civil lawyers. A conflict is being established between criminal and civil law surely in the governments race to hand over land rights for free to their fracking friends.

    Homeowners have duty of care over what happens to any life form on their property. They can be sued if harm is done. This is one reason for trespass laws and yet giving frackers a free pass to pass over and under short circuits that right and leaves homeowners vulnerable to all manner of lawsuits if proper regulation is not established to say who is responsible in the event of major or even minor eruptions of accidents and hazards.Expecting residents to pay costs for pre testing and reporting, as well as post testing and evidence compiling as well as potential paying for lawsuits, places a massive financial burden upon them leaving frackers with another get out of jail free pass. Also Title Deeds are statutes in law themselves and conditions written within often make it clear what can and can’t be done with the land they belong to exposing landowners to liability if they do not adhere to those laws. So if the Deed says no signs or fence to be erected and yet the frackers do the opposite, who is liable for the violation? The government may have given over the right to frack everywhere but there are centuries of historical land laws being put at risk due to nationalising land masses for frackers to have a free pass to pollute, pillage and purvey our property for their profit and our loss.

    If the industry was nationalised then clearly there is legal precedence for most eventualities arising from execution by the fracking industry, but if landowners are expected to restore a site if the operator defaults, then what of those small residential landowners left with say ethane emissions or slow rising pollutants contaminating their land 20 years after frackers go bankrupt? Frackers obfuscate about how far they frack laterally, clearly to avoid being made responsible if things go wrong, it would seem? Maps should be regulatory required of the exact area under private land they expect to frack, before drilling takes place, along with geological estimates of what type of pollutants are known to exist along that deep surface and rock face. Obfuscations and prevarications currently used to exploit lack of knowledge will later be exploited wholesale to allow the culprits a get out of jail free card.

    Finally Joanne There is one key aspect of this industry that I noted at the initial stage of public consultation that hasn’t been addressed in LAW. It is the fact that in law cases (but not regulatory ones note) any claim should be fully evidenced. The EA public consultation document made the claim ”fracking is safe”’ and yet provided absolutely NO evidence to support that claim. Instead it manages to box with others findings that it is not safe even in the face of massive evidence they still say prove it is unsafe, when they have serially FAILED to prove their own claim that it is safe.

    Regulations avoid this age old law of the land, and hand over to profiteers a neat way of avoiding all liability allowing them shuffle blame to other agencies until the heat dies out. Fracking brings a major confrontation between written hastily scribbled ill thought through regulations and the British Constitution and the civil rights connected to land ownership, and the laws of the land, unwritten but handed down and fought for for centuries, and yet not one civil lawyer is yet standing up to defend entitlements and inherited rights of the ordinary man, while profiteers and their government lackeys write a free pass to ignore that heritage. Formerly it would be the peers of the realm who would defend ancient laws of the Brit Constitution, but nowadays many of those in the Lords, know nothing at all about the British heritage they should be upholding.

    • Small point, the Infrastructure Act exempts landowners from liability from claims for recovery of damages brought by third parties. In other words tin pot fracking companies will collapse at the first sign of trouble and injured parties will be left with no one to sue. This provision was included to try to placate once powerful landowners who are extremely uneasy about the compulsory purchase powers operators acquire with their Petroleum Exploration and Development Licence(s). The powers to purchase land against the wish of the landowner are for any surface infrastructure needed for petroleum exploration and extraction including roadways, gathering pipelines, gas dehydrators, compressor stations and transport pipelines in addition to the drilling and fracking sites themselves.

      • Yes and the gov are already fracking through parliament a duff Act covering corporate manslaughter. I have no doubt frackers will not be sued due to loopholes being built in. We as a nation opposed to fracking should be doing what Pennsylvanians have now achieved and that is rise up against the government force them to apply the law of the land and it’s constitution to keep citizens safe from harm, and PROVE fracking is safe before using us as guinea pigs for their fracking experiment.

        Oh and purchase of ”surface ” infrastructure? It’s the fact they can frack under land they haven’t purchased i.e. mine, that is the issue Wells and the fact they trampled/trespassed all over gardens they didn’t own in Lancashire and gave gunmen the right to kill birds and many other violations of laws of the land that is a worrying feature.

  2. A very disappointing post. Compare the detail of regulation and enforcement in the United Kingdom of Great Britain and Northern Ireland with that in the Commonwealth of Pennsylvania in the United States of America. For example a leaking well is a specific violation of specific regulations and gives rise to a penalty in Pennsylvania. In the United Kingdom of Great Britain and Northern Ireland a leaking well gives rise to no violation and no penalties. There are many other instances which demonstrate it is wrong to assert “it is important to note that the existing regulatory framework is well developed”. It is wrong also to repeat that unfounded assertion in various guises throughout the piece. The author and the author’s academic supervisors Tony Prosser and Margherita Pieraccini would benefit from studying the regulatory structure of Pennsylvania. They will discover that the regulation there is very lax indeed. Similarly they will discover that the regulatory structure of the United Kingdom of Great Britain and Northern Ireland is much more lax even than that, whether the target rock strata are conventional or unconventional.

  3. Some interesting points Joanne, but many gaps in your analysis.

    You state ‘However, the voluntary nature of such guidance means that it is legally unenforceable and as such cannot guarantee regulatory gaps are filled’.

    That seems to indicate you do not understand certain basics. Best practice is not a case of the law. Its about whether the Environment Agency issue a licence or not. It seems to me very odd that in the role of the Environment Agency is not mentioned. You do refer to the Environment Permitting Regulations 2010, that give legal requirements as imposed by the EA. Schedule 22 gives the bulk of the protections, and chemicals which could compromise groundwater are simply not permitted under law.

    You state ‘This is due to the categorisation of many chemicals used in drilling muds and fracturing fluids as non-pollutants (pollutants being defined as any substance liable to cause pollution, in particular those listed in Annex VIII of the Water Framework Directive (WFD)’
    They are classed as ‘non hazardous pollutant’, a different animal.
    The JAGDAG list (from the Water Framework Directive) classifies chemicals as ‘hazardous pollutant’ in which case it is not permitted at all, and ‘non hazardous pollutant’ which means it can be used in dilute quantities, to be decided by the EA.

    You seem to have concentrated on the EU stuff from early 2014, when the EU started its process of setting up EU wide regulation. There is a consultation process going on that will approve or forbid certain chemicals in the EU context. In the meantime, the EA are the body that will decide.

    You are correct to state that EIAs are not always required. However an Environmental Risk Assessment, on the drilling plans and immediate drilling issues, is always required.

    This is a useful watch for anyone concerned with the EAs role. https://www.youtube.com/watch?v=5sAnfigrtEY&feature=youtu.be

    • Don’t worry Joanne will be batting for the frackers before long. The tell is in the repeated incorrect claim that gas and oil extraction from conventional rock strata is regulated well. Lawyers do not discriminate about where fees come from, the objective is to maximise them.

  4. Really Wells water waste?Its regulated badly? and your evidence of the thousands of wells in the UK on land and offshore, none are leaking, none are causing problems. You evidently do not have a clue. Where is your evidence?

    Please, this is an argument on science, and regulation. You appear to have brought nothing to the argument except ignorance.

    • To be more accurate Anon, have you trawled through the EA’s list of currently spotted (as opposed to those not yet spotted and let’s hope no one notices) violations of regulations to see just how widespread they are?

      I recently tried tracking due diligence of the EA over a local landfill site, only to get arrogance from the EA and similar from the company taking over the Syngenta toxic sludge site in Huddersfield. These people do not see themselves as services for the public, under the new regulatory framework they believe themselves accountable only to shareholders and the profit margins of their ”clients”

      It is interesting that a recent press report on the trial of a man given endless amounts of chemicals to dispose of lauded how he and his wife got sent to jail, yet the company that supposedly gave the chemicals to him for disposal wasn’t featured, nor did it get a sentence for not delivering due diligence when contracting with companies to dispose of hazardous pollutants. Situations such as this will proliferate once non accountability to the public is rolled out full time when regulations rule.

      The line of monitoring and enforcing rules is totally lacking in the UK and saying that we have the best regulations in the world is globally risible. Try reading regulatory frameworks of other countries to see just how lax UK governance of major essential resources is. Poland for .example have something like 67 rules guiding mining against something like 27 in this country. It isn’t regulations in their millions that make a system safe, it is enforcing them and policing the system that is lacking in this country. Disconnecting major regional resources such as water and waste disposal and their management from local council management. and planning processes local councils should have control over, is a drill on localism this government duplicitously says it wants to encourage.

  5. Ignorance is widespread. In particular those who assert that UK wells do not leak and have not leaked both onshore and off shore are ignorant of the fact that they have and do leak. Wells targeting unconventional rock strata are more likely to leak, which is one of the many reasons why fracking in the UK does not have a social licence to operate.

    • Just an assertion then Wells Water Waste, DECC think differently and they are the people who would know. Do you just feel that must be the case in your bones? or maybe the tea-leaves told you? https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/268623/13_1664.pdf

      Wells targeting unconventional strata are NOT more likely to leak. Leaking is a surface effect, and the shale is very deep. You clearly have no drilling knowledge. This was reported as well.
      http://www.telegraph.co.uk/news/earth/energy/fracking/11097487/Fracking-doesnt-contaminate-water-supplies-faulty-shale-gas-wells-do.html

      • Hmm…………. thinks……. Oh! aha! “faulty shale gas wells do”….leak, oops

        LEAK

        So this is the situation 10% of offshore UK wells leak.

        6137 offshore wells 10% or 613 leaking wells.

        The only way that UK regulation of wells targeting conventional rock strata can be defined as being well regulated is from the perspective of the operators since that regulation is so lax as to allow them to do whatever they please with no threat of penalty.

        For this and many other reasons fracking has ………

        No Social Licence.

      • Of course anon The Telegraph only reports favourably on fracking due to being owned by Barclays who own Third Energy who are currently wanting to frack N Yorks. And a lot of iGas and other frack industry shareholders who bank Barclay love their soporific stance on fracking non liability.

        I wont give a link to thousands of reports of how wells leak in the US, and how toxic sludge mixed with hazardous pollutants underground seep upwards ten years and beyond frackers packing their bags leaving accountability behind, for I am sure you would prefer they didn’t exist?

        The fact leaking is a surface effect is cause for concern, for EQ are known to be caused by fracking, also in times of drought massive deep cracks metres below the earths surface can allow leakage upwards.

        It’s drills that target lower stratas, waste is buried and as we are finding in Scotland and the Cumbrian coast the hazardous pollutants seep upwards into the soil creating mas irreversible pollution for millennia to come.

        The fact that shale is deep is the reason it should be fracked. it protects the upper surface from known and yet unresearched hazards, and once broken up those pollutants are allowed to seep upwards and pollute land years after fracking has stopped.

        Wells in the US are constantly leaking and the UK has as yet no evidence to prove they wont do so here. I don’t want my friends family and community used as guinea pigs for some mass fracking experiment, when the lessons are already learned in the US.

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