UK: Wasting Opportunities On Shale

Last Updated: 29 August 2014
Article by Sam Boileau, Laura Mackett and Roy Pinnock

The press often focuses on the risk of fracking but fails to address waste issues. Sam Boileau, Roy Pinnock and Laura Mackett look at how the waste sector can bring expertise on technologies, on-site recycling and disposal.

In January David Cameron pledged to go "all out" for shale. In April a government-supported study by EY, previously Ernst & Young, estimated shale in the UK could generate 64,500 jobs and stimulate an investment of £33bn. Then in May the House of Lords economic affairs committee asserted exploration and development of UK shale should be an "urgent national priority".

At the same time, investors and objectors are beginning to test whether the legal framework is fit for fracking. The government believes so, but continues to reform key areas, while the European Commission has voiced concerns over potential gaps in EU legislation. NGOs meanwhile think we should be firmly putting the brakes on.

The press often focuses on the environmental risks associated with fracking. But a point that few commentators pick up on is that waste and planning regulation is likely to play an important role in the regulation of shale projects.

These projects are likely to generate a wide range of wastes. These include drill cuttings, spent drilling muds, flowback fluid mixed with produced water, sand removed from flowback fluid, well stimulation fluid remaining underground, waste gas including fugitive or transient emissions and any condensates or contaminated residues that are discarded.

Added complications

The oil and gas industry is not unfamiliar with the waste management regime. Indeed, onshore oil and gas facilities frequently have their waste processing facilities on site. That said, for shale gas projects, there are some added complications and issues that distinguish them from conventional oil and gas projects.

Fracking involves the injection of large volumes of water. This water is likely to pick up naturally occurring radioactive materials (NORM) from underground strata. This means that, upon returning to the surface, fracking fluid may contain sufficient NORM to be classed as radioactive waste and require an environmental permit for its storage and disposal.

The Environment Agency will not accept storage of such flowback fluids in open- surface lagoons as often seen in US projects, so waste fluids will need to be piped or tanked away for treatment.

Whether treated on or off site, end-of-waste issues arise around the recycling and reuse of fracking fluids. If flowback fluid can be treated to the point where it performs the same function as fresh injection fluid, the agency considers it to no longer be a waste and can therefore be reused in well stimulation.

Operators are unlikely to be granted a permit unless they show a clear strategy for disposing of radioactive flowback. This is significant because of the limited number of installations available nationally to treat waste containing NORM. The December 2013 DECC and AMEC Strategic Environmental Assessment report concluded that volumes of flowback waste water could range from 3,000 to 18,750 cubic metres per well.

Under a high-activity scenario, that could mean a potential wastewater treatment and transit requirement of up to 108 million cubic metres, which would place a substantial burden on existing infrastructure.

Any well-stimulation fluid remaining in the ground is likely to be considered a waste and subject to regulation under an environmental permit at the point it no longer serves a useful purpose. For example, when drilling is suspended or a well is abandoned. At that point, the agency considers the fractures in the target formation will form an area designated for the deposit of waste.

Waste from fracking operations will be "extractive waste" under the Mining Waste Directive (MWD). This requires extractive waste to be managed in accordance with certain mining-specific rules and is implemented via the environmental permitting regime.

There is also the possibility that fracking sites could be 'category A' mines under the MWD if they handle hazardous waste above certain thresholds or if an operational management failure could lead to severe environmental harm. If so, this would result in a more onerous permit application process as well as the need for a major accident prevention policy, an off-site emergency plan and a financial guarantee to ensure funds are available for aftercare costs.

Finally, there is the issue of waste gas disposal. The Environment Agency prefers the use of enclosed flares. Alternatively, waste gas may be vented in a controlled manner where flaring is not a safe or practical option. Waste management plans should address waste gas as well as detection and prevention of fugitive methane emissions. An environmental permit and consent from DECC may also be required.

The planning regime is well used to dealing with onshore minerals development. However, shale development poses some challenges for those involved in securing the necessary permissions. Weaknesses in environmental impact assessment materials continue to threaten the robustness of decisions.

Get off my land

Land ownership in England and Wales extends to significant depth, at least the depth of fracking operations. Because of the need to drill horizontally, fracking operations are likely to pass through multiple ownerships. Without consent, such drilling operations can be restrained via the law of trespass.

Petroleum exploration and development licence holders can obtain wide-ranging 'ancillary rights' secure from third-party owners via section 7 of the Petroleum Act 1998, but the process is not quick and is subject to some level of compensation. Although the regime is, arguably, fit for purpose in its current form, the government is committed to controversial reforms to the law of trespass.

These involve default rights once one-off payment for each unique lateral (horizontal) well that extends by more than 200 metres laterally has been given to affected landowners. This will speed up the overall consenting process but will do little to address the wider issues of planning permission in terms of social licence to operate and the ways that community benefits are structured.

In the absence of bespoke legislation, existing regimes will form part of a complex patchwork of regulatory controls that will apply to onshore shale projects. Issues inherent in shale gas projects will give rise to opportunities for the waste sector to add value and bring expertise, for example, in relation to waste treatment technologies and on-site recycling and disposal issues.

Originally published in Waste Planning.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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