Friends of the Earth has accused the Environment Agency of failing in its duty to ensure that best techniques were used to deal with waste fracking fluid at Cuadrilla’s shale gas site in Lancashire.
The campaign group said the regulator should have considered measures that could have reduced the impact of fracking at the Preston New Road site on the environment and local people.
It said the Environment Agency (EA) should have assessed whether the best available techniques were being used to treat flowback fluid, the liquid waste that comes to the surface after fracking, when Cuadrilla applied to vary its environmental permit in December 2017
At a hearing at the High Court today, Matthew Reed QC, for Friends of the Earth, said the EA had failed in its duty under the Mining Waste Directive to assess whether better techniques were available for onsite treatment and reuse of flowback fluid.
Mr Reed said a technique called electrocoagulation, which removes heavy metals and suspended salts, allowed flowback to be recycled and reduced the amount of fresh water that had to be added to fracking fluid. It also reduced the need to transport waste offsite for treatment.
He said the Environment Agency should have considered the appropriateness of electrocoagulation in the on-site treatment of flowback fluid at Preston New Road.
Mr Reed said electrocoagulation had been used successfully in the US and Third Energy had proposed it for the fracking site at Kirby Misperton in North Yorkshire. The technique had also been referred to in a European Commission Best Available Techniques Reference, or BREF, document.
He said the permit variation, which among other things allowed Cuadrilla to carry out more than one fracking stage per day, was an intensification of the activity. The best available technique assessment should have been carried out because it was a substantial change.
But Tim Buley, for the EA, said the assessment was not required because the variation of the permit was a “pretty minor change”. It brought the permit into line with the wording in the waste management plan that had been previously approved in 2015, he said.
Mr Buley described the Friends of the Earth case as “hopeless”. He said the EA did not regard electrocoagulation as a best available technique for dealing with flowback fluid.
The court heard that Gary Edwards, a senior adviser at the EA, had said electrocoagulation was as a promising potential technique. But trials had “highlighted a number of factors that are likely to prove challenging to a full-scale flow process”.
Mr Buley added that Third Energy had dropped electrocoagulation because there was uncertainty about the volume of flowback fluid at Kirby Misperton. Friends of the Earth’s argument that this demonstrated the value of the technique could not stand, he said.
The European Commission BREF document described electrocoagulation as an emerging technique, not a best available technique, Mr Buley added.
Nathalie Lieven QC, for Cuadrilla, said the Friends of the Earth case “made no sense whatsoever”. She said it was “inconceivable” that the EA would conclude that electrocoagulation was a best available technique and should be required at Preston New Road.
She said Cuadrilla was already using ultra violet to recycle all the flowback and electrocoagulation would be no more appropriate. The fracking fluid used at Preston New Road could tolerate high levels of salinity so there was no need to remove the total dissolved solids, which was one of the benefits of electrocoagulation.
Ms Lieven said the use of the technique in the US “tells us nothing” because the fracking fluid and geologies were different to those at Preston New Road. The reference to electrocoagulation in the BREF document did not make it a best available technique, she said.
The outcome of the variation decision would have been no different if the EA had assessed whether electrocoagulation was now a best available technique, Ms Lieven added.
Mr Justice Supperstone reserved judgement in the case.