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Fracking Update May 2019

Fracking Update May 2019We originally planned this article for March, but so much has been going on that just as we thought it was finished, something else of importance would repeatedly burst onto the scene.

So, having spent time researching original source material,  this long article covers a lot of topics connected with fracking since our last fracking article in January.

But by far the most important cross-cutting matter for all the topics here is the future application of the 'Traffic Light' safety system which currently requires fracking to be suspended for at least 18 hours following earthquakes of 0.5 magnitude.


SYNOPSIS
We begin with a note about the Roseacre Site being refused planning permission and we pay tribute to some of those who stand out in our recollection of this Herculean task to protect the Fylde countryside.

Next we look at a recent Earthquake in Sussex and consider some possible geological similarities with Fylde before considering Calls to Raise the Traffic Light Safety Limit with reference to Government decisions and the background, views and demise of the Fracking Commissioner.

Next we look at the first of two topics about insurance and fracking. In Insurance Report, we look at a review undertaking by the rising stars of the Insurance world. We list and comment on Their Recommendations before giving Our Own Take on what they found and some of the likely implications.

The we move to our second insurance item More Insurance Matters where we recount and comment on a lady's battle with the Oil and Gas Authority for Information about the Insurance that Cuadrilla hold. It's a long and convoluted story, and we pay tribute to the persistence of the lady in trying to get answers from a recalcitrant regulator. Along the way she inadvertently exposes the incompetence of the OGA , and we reveal some details we suspect they did not want revealed. We then offer our own view of What to Make of it All.

Next, we look at a Court Case where a group called Talk Fracking undertook a Judicial Review in the High Court. The judgement found the Government's adoption of a paragraph in the National Planning Policy Framework was unlawful, and that the Government had failed to carry out a lawful public consultation on the revision of the policy, adding that the consultation on the draft revised Framework was so flawed in its design and processes as to be unlawful.

Moving on, we report the proceedings of a really interesting Conference at Ribby Hall, where we heard from Texan, Sharon Wilson who spoke about community effort and resilience. She was followed by the extremely capable and very entertaining Emeritus Professor David Smythe whose incredible geological understanding was almost matched by his outspoken manner and his ability to disarm with humour. Finally, we heard from Dr Tim Thornton, a former GP and now a Councillor about his experiences of the constraints of the planning system and how he was bullied and threatened as an elected member trying to represent his electorate.

Back to Fylde where we take a look at some changes Cuadrilla want to make changes to their Environmental Permit. The (perhaps distractingly intentional) headline story is to change the Fracking Fluids that can be used, but the changes being sought are much wider and include: Fracking Fluid Changes; 'Refining' their Management of Wastes; Air Quality Monitoring; Repeated Fracking Instances. We also look at the Consultation the Environment Agency has Conducted on the proposed changes, and take a brief overview of some of the comments that were submitted.

Next we look at the issue of Venting - which is wider than you might expect and can (and indeed has) resulted in methane and other gasses being  released into the air from the Preston New Road site. It also resulted in Cuadrilla receiving a formal warning for breaches of their Environmental Permit . We begin by Looking Back at a methane leak that brought the matter to light, and some instances where unburned and un-burnable methane mixes were vented to the atmosphere. The we look at What happened More Recently as a result of The Environment Agency's audit of the flaring process which included: Arrangements for the Flaring of Methane; The Use of Supplementary FuelThe Frequency of Methane Monitoring before considering The Outcome and our own views on it.

Back to the Courts to look at an important case for those protesting against fracking being allowed to take place. A company called Ineos secured High Court injunctions which restricted what protestors could do. (Cuadrilla has something similar here). However, alternative arguments were presented to the Court of Appeal who required the removal of two key elements of the Injunction and ordered the third to be re-tested in court. Summarising their view they said 'The citizen’s right of protest is not to be diminished by advance fear of committal except in the clearest of cases.'

Our penultimate topic is an important Freedom of Information revelation  concerning several matters, but chiefly detailing a Wellbore Malfunction which resulted in some of Cuadrilla's equipment having to be abandoned at the end of the wellbore. There might be more to come on this because Cuadrilla have been resisting requests for information and arguing with the Environment Agency that the details they had reported to the EA should not be released under the Freedom of Information Act. We are indebted to our friends at the Drill or Drop website for their detailed analysis of the information that was released.

To conclude this multi-faced article, we ask whether what we are now living through is actually The Beginning of the End of fracking in Fylde. Our narrow country lanes prevent the large vehicles accessing sites.  Public attitudes are hardening against fracking in principle, Local people engage in detailed resistance. More organisations are speaking up in opposition. So in time, that will probably be enough to cause fracking's demise. But If the traffic light system that Cuadrilla helped to devise - and signed up to as its earthquake safety measure - remains in place, (and at present it looks as though it will continue to be used), then we think that will probably make hydraulic fracturing of the Fylde's heavily faulted geology unworkable.



 ROSEACRE REFUSED

As we published out Bathing Waters article in February, we were delighted to be able to accompany it with a newsflash for readers subscribed to our 'Update Notifications' on the day that the Secretary of State had agreed with the original Roseacre Wood Inspector’s recommendation.

He dismissed Cuadrilla's appeal, and refused planning permission for drilling up to four exploratory wells and fracking at Roseacre.

He suggested he was not much troubled by any of Cuadrilla's Roseacre plans except those in relation to traffic and highways - and he was very troubled about those.

We think the extent of his concerns about traffic herald a situation that will have far-reaching implications for rural Fylde.

Put simply, almost the only reason he refused the application is that the roads around Elswick and Roseacre and Thistleton and Inskip and such places are simply not suitable for the number of industrial-strength heavy goods vehicles that Cuadrilla would need to use.

Our own take on this is that his decision has more or less closed the narrow lanes of rural Fylde to fracking traffic for the future.

To us, it means that, if they are to make future progress at all, Cuadrilla will have to find drilling locations like Preston New Road - where they are close to a main road

Fylde's rural lanes look like being 'out of bounds.'

The Inspector had also said as much after the first Planning Inquiry. But at that time, the Minister thought that Cuadrilla ought to have a chance to show they could undertake works to the highway network that would make it acceptable for the traffic they would generate.

And he gave them that chance by allowing a second Public Inquiry to hear how they would fix the problem.

But Cuadrilla blew it.

They were not able to convince him.

Some examples for our readers: The final decision said Cuadrilla's.....

"failure to survey critical parts of the GR [Green Route] and RR [Red Route], close to the main centres of population at Elswick and Inskip, from the perspective of pedestrian usage, is a serious weakness in the appellant’s case ......".

"He further agrees that the equestrian and pedestrian surveys along critical parts of the GR and RR are inadequate.....".

"He further agrees that the practicality of delivering driver education to a disparate and fluctuating group of drivers, not within the direct control of the appellant, cannot be guaranteed...."

"it is now agreed that visibility at five of the proposed passing places does not meet the requirement set out at....."

And a whole lot more of the same sort of thing.

After the decision was announced, we're sure that folk in and around Roseacre will have slept more easily.

There was subsequent a flurry of concern that somehow the Government itself could, in effect, 'Call in' the Secretary of State's decision and overturn it.

Whilst the more arcane labyrinthine parliamentary paths that might achieve something like this are, admittedly, outside our sphere of expertise, we don't know of any normal mechanism by which this could be done.

We also think the fact that two separate Planning Inspectors, two very long and detailed Public Inquiries, and several different Government Ministers who have all said the same thing, would make such a move unlikely.

Our MP was rightly outspoken in his condemnation of the use of Roseacre Wood and we know he supported the Roseacre Awareness Group where he was able to do so.

The campaigning by RAG and the several individuals who researched and mounted cases to oppose the appeal has paid off, and we think the people of rural Fylde will have cause to be grateful to them in the future.

We know several of them, and we also know it's probably wrong of us to single out any individual because in their own ways, whether it was Elaine Smith, the tourism graduate whose brilliant and devastating analysis showed how the plans would tear the claims in Fylde's Holiday Guide to shreds (see Roseacre Rout of 2018),

Or whether it was the current and former Chairs of RAG - Elizabeth Warner and Barbara Richardson, who have each spoken eloquently and powerfully on the matter and kept spirits up in the face of overwhelming financial legal and technical muscle from Cuadrilla.

But in our own minds, the one person who probably did more than anyone else to convince both inspectors of the traffic problems, was a bluff, plain speaking local chap called Tom Hasty.

He simply oozed practical transport experience, common sense and local knowledge of running fleets of HGV's

A former Transport Manager of quite some local standing (with the emergency services locally and in charge of the massive PANDORO road transport operation in Fleetwood), he came - like Obi-Wan Kenobi - out of retirement to expose Cuadrilla's many failings and, to our mind, he destroyed their case.

The people of rural Fylde should hold a special place in their hearts for him.

 SUSSEX EARTHQUAKE

A significant earthquake was felt around a place called Newdigate in southern England earlier this year. It happened about 2km below the surface, and measured 3.1 on the Richter scale.

One local resident told the BBC that "his house was shaking for between four and five seconds".

We've actually experienced that sort of 'house shaking' situation ourselves - and it's not pleasant.

It was in the 1970s when we lived just outside Preston. One sunny morning, we felt a low rumble and shaking of our house for a few seconds.

There was no visible damage to the property and, as far as we know there had been no man-made action to cause it. But up to that point, we had never felt an earthquake at all - so it was something strange and unwelcome.

It was very unsettling - in more ways than one.

Our readers will remember that in 2012, at Balcombe in West Sussex, test drilling for petroleum had been proposed; fracking had also been mentioned, and a protest camp became established.

The recent earthquake near Newdigate in Surrey is just ten miles (as the crow flies) from Balcombe.

Dr Stephen Hicks, a seismologist from Imperial College London told the BBC about the Newdigate earthquake saying: "There's nothing in the data to show that there was any plausible explanation why these earthquakes could have been induced or caused by drilling activities."

The widely respected British Geological Survey had reported the earthquake as part of what became called a 'swarm' of earthquakes in Surrey (and parts of Sussex). They included:

  • Three on 1 April 2018, (magnitudes 2.7, 1.8 and 1.7)
  • A fourth earthquake on 28 April which measured 1.5; a fifth on 27 June measured 2.6 and a sixth on 29 June registered 2.4
  • The biggest earthquake came later (on 5 July), and measured 3.0 on the Richter scale.

Altogether, 12 earthquakes were experienced in this 'swarm'.

As far as we know, there has been no actual fracking at Balcombe, and we are not necessarily linking this 'swarm' of nearby earthquakes to drilling - or to any other human activity for that matter.

However, in Surrey - as here in Fylde, shale rocks and faulted geology exist.

And even without fracking taking place, the natural 'fault' lines in the geology of both areas cause occasional earthquakes.

These fault lines are evidence of subterranean tensions we cannot see.

We only experience them when 'a straw breaks the camel's back' - releasing the tensions that have been building up over long periods, and the underground rock strata slip or otherwise move sufficiently for this movement to be reflected and felt at the surface, and people's houses shake - as at Newdigate.

The faulted geology suggests to us that, in relation to hydraulic fracturing, we would do well to consider Fylde's geology in the same light that we might consider a mousetrap.

Even after being baited and set, it might sit for long periods in a harmless, stable, state. But when something (even something quite small) triggers a change of its state, the resulting impact can be very much more significant than the pressure exerted by the mouse's foot.

To us, it seems not at all surprising that small scale earthquakes caused by fracking - the sort which might properly be described as having an undetectable surface reaction, (or only being as significant as 'a melon dropping on the floor - as some have said') - could trigger something much more significant in relation to the tensions that already exist in strongly faulted geology, like the ones in the swarm of earthquakes in Surrey and Sussex.

We've also had it suggested to us that if - as they have applied to do - Cuadrilla change the mix of chemicals they use as fracking fluid to better lubricate the passage of sand into fractures they are causing in the shale rocks underground, and if some of that fluid - which is being forced under extreme pressure to crack open the shale rock, (and much of which is expected to remain permanently underground) - finds its way into existing natural fissures and faults, then it seems entirely logical to us that when so lubricated, existing faults under natural geological pressure, might be more likely to move as well.

We pick this logic up further in the next section and beyond.

 CALLS TO RAISE LIMIT

In our last fracking article (PNR: What's Going On?) of 4th January, we said of Cuadrilla

'It seems to be the case that each time they have fracked, they've had problems with earthquakes.

And if it's correct that there have been significantly less instances of fracking than the 48 occasions that were envisaged, and (according to the British Geological Survey) there have been 57 instances of earthquakes in the Blackpool area between 18 October and 15 December, it is likely that sometimes the earthquakes arose when there was no fracking taking place.

Potentially that's more worrying - because, if the cumulative effect of fracking is causing earthquakes when fracking has not been taking place, then we could be heading toward what happened at Preese Hall in 2011, where the 50th earthquake arose from an in-combination result of all the earlier ones, and it was much larger.

It damaged and deformed the metal casing of the well that had been drilled - leading to its abandonment.

So it seems that no matter what they tried on this first well - latterly using liquid nitrogen - the fracking is causing earthquakes.

Not only that, but they can't frack with sufficient force to get enough sand in the fractures to prop them open for a decent flow of gas to come out before causing an earthquake and having to stop.'

We also said that, as well as putting pressure on the shale rocks to give up their gas molecules, Cuadrilla were also trying the frack the Government (and Minister Claire Perry in particular) by applying pressure on her to change the 'Traffic Light' safety-first system that Cuadrilla had themselves devised and agreed with Government and their regulators as being the way to proceed.

Initially, Minister of State at the Department for Business, Energy and Industrial Strategy (Claire Perry), said she wasn't for budging.

Several times she said that as far as the exploration phase was concerned, there would be no raising of the earthquake limits at which fracking had to be suspended.

She did say that after the exploration phase, Government might be prepared to look at the 'traffic light' limits with a view to changing them for the 'production' phase (which was expected to follow a successful exploration phase). But at present, it was 'No Change'

Cuadrilla, and Ineos, (who we've even less time for), and maybe other exploration outfits - have maintained their pressure on Government to relax the 0.5 'Red' limit for seismic activity as soon as possible.

And in recent weeks, there has been concern within the groups who keep a close eye on what's going on, that Ms Perry might have been starting to buckle - because she was reported as saying it wouldn't be her who took the decision anyway. That was the responsibility of the regulator, not her.

We spotted another worrying comment from her as well.

In February 2019 Lee Rowley MP (North East Derbyshire) wrote to her and asked what the evidential basis was for the decision to suspend hydraulic fracturing operations for 18 hours as a result of induced seismic activity of >0.5 magnitude.

She answered on 08 March 2019 saying:

'Following minor seismic events at Preese Hall in 2011, an expert scientific review recommended that a traffic light system (TLS) be put in place, under which hydraulic fracturing operations should be paused if a seismic event was detected at or above a precautionary threshold of magnitude 0.5.

The intention of the TLS was to minimise disturbance to local communities and to avoid harm to people or the environment. The TLS was developed in consultation with industry.

The Oil and Gas Authority monitors seismicity as part of their regulatory duties at shale gas sites and requires certain controls and requirements to be adhered to as set out in a Hydraulic Fracture Plan (HFP) which must be agreed between the operator and the regulators before operations can start.

The TLS did not specify a pause period after a 0.5 magnitude event, however as a part of the HFP for their first well at Preston New Road, Cuadrilla proposed that they would pause for a minimum of 18 hours should a seismic event greater, or equal to, the 0.5 magnitude threshold be detected.

The regulators considered that this was reasonable to allow them sufficient time to analyse seismic data and minimise the risk of trailing events.'

According to our reading of what she said to Mr Rowley, experts had recommended a pause on fracking if a 0.5 magnitude earthquake occurred, but that requirement hasn't been incorporated into the 'Traffic Light System'.

It is only specified in the 'Hydraulic Fracturing Plan' that Cuadrilla submitted (and the regulator has approved) for Well 1 at their Preston New Road site.

If that's right, then it's probably another reason why approval of Cuadrilla's Hydraulic Fracking Plan for the second well at Preston New Road is taking longer than some folk expected.

It might be the case that Cuadrilla are arguing not to provide a pause after a 0.5 earthquake on Well 2.

Whether Ms Perry's comments on this matter mark the start of a fracturing of her previous position, and whether enough of Cuadrilla's sand can be forced into it to open her argument long enough for the regulator to agree a change to the limit for Well 2 remains to be seen.

Adding even further to Cuadrilla and Ineos' pressure on her, Natascha Engel, the government’s (supposedly) Independent Commissioner for shale gas, said the industry was on the cusp of finding out how much of the gas was trapped underground, but seismicity rules were holding it back. She urged the Oil and gas Authority to undertake a review.

Ms Engel is a former Labour Party MP defeated in the North East Derbyshire 2017 general election. But she was subsequently selected and appointed to the role of 'Shale Gas Commissioner' under Claire Perry on 5 October 2018.

The announcement of her appointment noted that:

'Taking up her post this week, Natascha Engel will be a direct communication link between local communities, the shale gas industry and the industry regulators. The commissioner will be a contact point for residents, to listen to their concerns, refer them to relevant and factual research and help improve communication with regulators and industry......

.....The commissioner will work closely with the shale gas regulators, although will be distinct from them, as it is not a regulatory role and has no powers of enforcement or investigation. To preserve the independence of the regulators, the commissioner will not comment on any specific regulatory decisions."

On the matter of the Traffic Light limits, The Guardian reported Ms Engel as having said.....

“Opponents are saying don’t lift it, don’t review it, which makes no sense. It’s been made into a political decision rather than a technical decision and I think that’s a mistake,” she said. Companies could not wait forever for a review, she said. “Things are coming to a head. We’ve had a stalemate. Decisions will have to be made.”

With Ms Engel taking such an apparently pro-fracking stance, our readers will understand the concerns of those who see the imperative of maintaining both the 'Traffic Light' safety process devised and set by Cuadrilla, and the limits within that agreed safety process that Cuadrilla willingly agreed with the Government and their Regulators.

That concern is even more understandable for those who might have read an earlier article by Liam Norcliffe in the Derbyshire Times of December 2017.

Under the heading 'Decision by former MP to link up with fracking firm criticised' he said:

'The decision by former MP for north east Derbyshire, Natascha Engel, to link up with the firm which wants to carry out fracking in the district, has been criticised. Chemical firm Ineos has commissioned the former Labour MP to write an ‘information booklet’ on shale gas exploration.

The company has applied to drill for shale gas in Marsh Lane, near Eckington, has [sic] said the booklet will be made available to the local community and will ‘explain shale exploration and development’.

Responding to the announcement, Anne Western, leader of Derbyshire Labour Group, said:

“Natascha Engel’s decision to work on behalf of Ineos is shocking and disappointing. Natascha’s views on fracking are entirely her own and do not represent Labour Party policy or the views of many Labour members......”

Ineos said the book will ‘explain more about combating climate change, energy needs, and the positive impact on jobs, training, industry and community benefits’.

Explaining her decision to link up with Ineos, last week Ms Engel said:

“I saw first-hand what the impacts are on small communities when they hear about a shale gas application near them – even when it’s only for exploratory drilling.

What people want is information. They want to know how it will affect them and they want reassurance that it is safe.

I hope that this booklet will provide some of those certainties.” She added: “Most of all I hope that this will allow Ineos to work constructively with communities so that local people gain the most in terms of the jobs and apprenticeships that this industry could bring – something I have campaigned on for most of my adult life.”

And Tom Pickering, operations director at Ineos shale, said: “Natascha will give us a better insight into the needs and concerns of residents. As a former Labour MP and trade unionist, Natascha has always made the case for good jobs, as well as health and safety. At the same time, Natascha is well placed to give us a full understanding of local issues and help us to continue to be an open and inclusive organisation.”

With Minister Claire Perry's Independent Commissioners like Ms Engel having influence, we can understand why there is a worry that the Traffic Light system is under threat.

However, and thankfully, Ms Engel resigned from her commissioning role on 28 April 2019 after just six months in the job, saying fracking was being throttled by rules preventing mini earthquakes which had cause a de-facto ban on fracking. She told the BBC

"These points have been made repeatedly but ministers ignore them and instead allow campaign groups to drive policy."

On a broader perspective, we wondered what the role of a 'commissioner' like Ms Engel was.

In most instances 'commissioners' - for example the Police and Crime Commissioners - are appointed to commission services on behalf of the public. They set priorities and also carry out an investigatory and watchdog type role on those delivering the services.

As far as we could see, Ms Engel saw her role the other way round. It was to deliver the public into the hands of those who would provide the service that (locally at least) the public, and all levels of local government, did not want.

She continues to make the case for fracking outside her former role with (most recently) an article published in PoliticsHome  which claims to be 'The most read specialist political news source in Parliament'.

One of our readers (themselves a health expert) thinks Ms Engel's dismissive statements on health concerns from fracking are technically incorrect and has provided scientific references to an MP to help warn other MPs that Ms Engel is not a health expert.

Maybe this would be a good time for the Government to adjust the 'Commissioner's' terms of reference (if there is to be another 'Commissioner' that is.)

In the meantime, those who oppose a change in the Traffic Light Safety system limit can signal their opposition by signing a Parliamentary Petition.

Readers can follow this link to the 'Maintain current seismic thresholds for fracking activities' petition  

 INSURANCE REPORT

One of our readers has been exercised about the matter of fracking and insurance recently, and they passed the result of some of their research on to us.

We thought our readers might like to know about it as well.

It began with the publication of a report by the excitingly named 'Chartered Insurance Institute Claims Faculty New Generation Group' entitled 'Insurance Implications of Fracking'

It is undated, but from what we can establish it was first published in March 2017 and was subsequently updated in November 2018, so it is pretty much up to date.

Readers wanting the full SP can follow this link to download a pdf copy of the full report

Basically a group of 12 or so rising stars from right across the insurance profession carried out 18 months of research with insurers, loss adjusters, energy companies and environmental groups to produce an overview of the present situation and to offer their key recommendations for the future.

They noted that whilst existing products appeared to provide adequate cover for households and small businesses, and (as yet) no insurer specifically excluded fracking, there are no insurance policies that specifically cover it either.

They also noted the level of support emanating from Government could result in large scale fracking being rolled out across the UK in the near future and, whilst the present regulations ensure it is as safe as it can be, insurers particularly need to consider the potential risks that an increase in activity could bring.

The group say that the main 'perils' associated with fracking are earthquakes, explosions, fire, pollution, injury and death, adding that whilst such risks are already included in most insurance policies, fracking will pose additional complications around liability.

Furthermore, widespread fracking may also lead to increased claims frequency near fracking sites and then insurers might have to consider how they underwrite what might become an emerging higher risk group.

 Recommendations

At the start of their study, the group set out not to have any strong views on whether fracking was good or bad for the country, and sought to remain neutral in outlook.

Their main recommendations are:

  1. That the Insurance industry needs to be open and transparent about any risks that fracking causes
  2. It should ensure that there is ongoing monitoring of fracking and that there should be industry forums where practitioners can raise and discuss any emerging risks or issues.
  3. The insurance industry, energy industry and government should work closer together and be able to easily communicate with each other on any issues that may occur.
  4. Insurers should ensure they are ready for any potential claims and understand how their policies will respond:

This, they say, is necessary to ensure that legislation and regulations are sufficient to reduce the likelihood of potential risks occurring and, if they are not, to consider where they can be improved - for example, whether further legislation might be required in order to place a stricter liability on fracking operators

If a fracking related incident occurred (such as an earthquake or explosion), then anyone affected would expect the fracking operator to accept liability for any injury or damage caused. But this may not be as straight-forward in practice.

However, a consumer or business would have their own insurance policy which, depending on what incident has occurred, they may be able to claim via their own policy.

But they seem to have real concerns about how liability might be established, saying.....

"One point insurers need to be acutely aware of is that any uncertainty as to where liability rests will always lead to increased litigation and if any such disputes are insurers vs. insurers then the whole industry loses out, either by spending exorbitant sums in legal fees or as a detriment to their reputation.

We recommend that the Government set up a cross industry body to discuss such an issue as a way of avoiding any future satellite litigation or coverage wars that could arise following a large fracking incident. This should also consider whether further legislation is required in order to place a stricter liability on fracking operators to ensure a reduction in the likelihood, and potential impact of property damage or injury."

The group recommended that insurers review their own policy coverage and ensure that they fully understand the potential risks that fracking poses and understand how their policies would respond if claims did occur.

They noted that Insurance policies from different insurance providers will vary in terms of the level of cover provided so insurers should ensure that they make their customers aware of any key differences in their policy coverage.

 Our Own Take

Having read the report we offer our own take on a few of the things that we spotted.

Generally speaking the view was taken that most things would be covered in domestic policies. For example, most home and commercial property insurance policies would cover the property damage as a result of an earthquake.

The fracking operator would have a liability policy in place that would provide cover for any claims made against them if they are held liable for causing the earthquake.

For the fracking operator’s insurance to pay out for these claims, it would have to be proven that they are liable for the damage caused - normally in negligence, but other forms of liability could apply.

And claims against the fracking operator could be brought directly by the individual who has suffered a loss, or a claim made by an insurer who has initially paid out.

Likewise with fire and explosions, any resulting damage to homes and offices in the near vicinity would normally provide cover for fire and explosion.

A standard home buildings policy normally provides fire and explosion cover, so a home or commercial insurance policy would not exclude damage caused by an explosion or fire emanating from fracking activities given that those perils are not a new risk.

They suggested that cover for 'Pollution' seemed to be more 'patchy' in its application - varying from policy to policy, with some policies providing limited cover for a ‘sudden and unforeseen’ event and others excluding all damage as a result of pollution. Furthermore, where cover is provided this often has varying limitation and exclusions.

The report anticipated that the Environment Agency would look to clean up a large pollution incident initially, and then recover the cost from the responsible party (i.e. the polluter pays).

But it expressed some concerns about insurers picking up the costs of pollution in the first instance then seeking a difficult recovery against the well operator. In particular there was concern regarding the company structures that might be used by the operators.

For example if a small 'special purpose company' had been set up for a particular place or site, (or if a subsidiary of the main company had been used), and it was found to be liable for an incident, but - for whatever reason - it did not have sufficient capacity to meet the likely claim, there could be difficulties in obtaining reimbursement from a solvent parent company, potentially resulting in lengthy recovery processes, or these being abandoned entirely.

The report spends a lot of time looking at liability and how to prove it. It notes that earthquakes are currently mostly regarded and 'natural' phenomena, but it cautions:

"However if there is clear geological evidence that fracking causes earthquakes, and the earthquakes that arise in the UK are of a size and scale that damages buildings, insurers will want to limit their liability to such losses. One way a property insurer could react would be to add a specific exclusion for man-made earthquakes."

That's a route we see fraught with unintended consequences.

To be fair, the report takes a moderate and balanced view on it, but their concern is evident

"If the insurer was able to exclude the claim, this would leave the consumer in a situation where they have no cover for the damage to their property and they would have to pursue a claim directly against the well operator.

If the well operator did not admit liability this could be a costly exercise if legal action was required which could be beyond the means of a small homeowner with few assets or savings.

Furthermore any civil action against a well operator is far from certain with the property owner having to rely on case law set of nuisance set out in Rylands v Fletcher [sic] which was a case relating to the escape of hazardous materials following the construction of a reservoir."

One aspect they go on to consider is whether Government ought to help consumers who find themselves facing higher insurance prices for less cover. They offer a possible solution saying:

"One option would be to make any fracking-related incidents a strict liability offence.

If a contractor is pumping fluid into a well and if there is a small scale earthquake which results in damage to properties, it could be a strict liability that the damage was caused by the well operator. The fracking company would then have to compensate the property owners directly and there would be no need for an insurance company in the middle. Alternatively a homeowner can claim via their property insurer but the insurer can easily bring a subrogated claim against the fracking company.

In order to make this a strict liability offence, a lot of lobbying of government would be required.

The main problems with this are twofold

(i) most anti-fracking groups are so against the process that they cannot comprehend a situation where this process is carried out in the UK, therefore they are more interested in stopping this altogether rather than petitioning for something like this, and

(ii) the other party who would undertake such lobbying would be the insurance industry; however it would not be in their favour to do this given most do not see this as a big issue at present."

As we said before, we thought they had produced a broadly a moderate and balanced view, and all told, if it's a matter that interests our readers, it would be worthwhile reading the whole publication rather than our own personal take on what has been said.

 MORE INSURANCE MATTERS

Having become aware of the 'Insurance Implications of Fracking' report, one of our readers asked Cuadrilla about their insurance for their Preston New Road Site.

Cuadrilla said they thought the potential for hydraulic fracturing operations to cause damage to property was extremely low, but they were substantially insured to provide cover for possible damage and losses caused to third parties resulting from operations where a legal liability exists.

That's as fine and dandy as maybe, but the bit about establishing a legal liability is the tricky part - as the insurance industry report highlighted.

Cuadrilla told our reader....

"Cuadrilla’s fitness to operate including arrangements for potential pollution liability and insurance cover have been fully assessed by the appropriate regulatory bodies and been found to fully meet requirements."

"Our insurance is provided by global insurance underwriters who are ‘A’ rated and we are confident that the level of cover is sufficient for any likely legal liability. However, in the unlikely case it is not, the liability rests with Cuadrilla and our joint venture partners including AJ Lucas and Spirit Energy. The policy covers Cuadrilla Resources Ltd and all subsidiaries and would respond to all valid claims arising from Cuadrilla’s proposed operational activities at Preston New Road."

Our readers sent us a copy of some redacted public domain correspondence that had been sought under the Freedom of Information Act regarding insurance. It concerned the extent of insurance cover that Cuadrilla hold.

The story begins a while ago but comes up to date.

On 10 May 2017, after the publication of the first version of the 'Insurance Implications of Fracking' in March, the Oil and Gas Authority had written to Cuadrilla asking for confirmation that they had 'timely access' to the funding required to remedy unexpected events - such as 'an uncontrolled release of hydrocarbons, a fire or a well control activity'. And whether the funding would come from Cuadrilla's balance sheet or via an insurance provision.

They specifically asked Cuadrilla's Board for confirmation....

'... that the funding would cover all the events that might arise from the activities for which you are seeking consent;

Your considered opinion that the funding for such unexpected events is sufficient in the circumstances; and

In the case that funding will flow from an insurance policy, the lead underwriter, the date of commencement and duration of cover and confirmation that the funding will be available immediately should an event or events arise.'

So far so good

Cuadrilla's Board replied on 30th May 2017 to say

'The confirmations in this letter are given on behalf of the board of directors of Cuadrilla Bowland Limited's (CBL), acting in its capacity as operator of PEDL 165 for itself and as agent for the other licensees.

It is hereby confirmed that CBL has insurance in place for and on behalf of the licensees in respect of the proposed drilling operations. This insurance is considered to be sufficient in the circumstances for the proposed activities and consistent with that held by a reasonable and prudent operator.

Insurance for the proposed activities is provided through [name redacted] and the policies include:

  • Energy Package - including Onshore Property and Operator's Extra Expense with a combined single limit of $USD 25M.
  • Public Liability, Pollution Liability and Products Liability with a £10M limit for any one occurrence or series of occurrences.
  • Excess Public Liability, Excess Pollution Liability and Excess Product Liability with an additional £40M limit for any one occurrence or series of occurrences.

The above insurance policies commenced on 1 October 2016 and expire on 30 September 2017. These policies will be renewed as part of our annual insurance renewal programme.'

Again, so far so good.

A year or so later, in early 2018, (perhaps after the insurance industry's 'Insurance Implications of Fracking' report was updated) a lady sent a Freedom of Information request to the Oil and Gas Authority asking for details of Cuadrilla's insurance, to include

i) the dates of all communications

ii) the name of the insurers

iii) the extent of the policy cover - including the total liability covered

iv) any exclusions to the policy.

The OGA replied on 12 April 2018 enclosing copies of Cuadrilla's Board's confirmation of sufficient contingency funds and the figures (above) that Cuadrilla had given to them a year or so earlier.

The lady noted the documents were out of date, and asked the OGA for the up to date details.

The OGA said they did not actually hold that information, and what they had provided was what they did hold at the time the lady had asked for it.

They did however send her some 'Guidance' setting out what they expected of those who had licence to explore for onshore hydrocarbons, and noted.....

'It maybe helpful to know that Cuadrilla did, as noted in the letter, renew their policy from 1 October 2017.'

They might have been technically correct to say this (assuming they had failed to ask Cuadrilla for, and thus did not have a copy of, Cuadrilla's insurance details after insurance had been renewed from the previous October).

But we thought it was incompetent the OGA had not sought a copy of Cuadrilla's renewed insurance, and a bit churlish of them not to deliver the most up to date information in response to the inquiry anyway.

So did the lady.

She wrote again (this seems to be our sort of lady).

Some correspondence was exchanged, and in August 2018 the lady asked the Oil and Gas Authority more comprehensively....

"1) Please provide a copy of all email communications between OGA and Cuadrilla (Resources), detailing Cuadrilla's provision of the company insurance, to include

i) the dates of all communications

ii) the extent of the policy cover - including the total liability covered

iii) any exclusions to the policy.

2) Please detail and explain how the insurance criteria of 'Energy Package - including Onshore Property and Operator's Extra Expense Public Liability, Pollution Liability and Products Liability Excess Public Liability, Excess Pollution Liability and Excess Product Liability' provides cover for

i) third party liability,

ii) environmental liability

iii) loss of well control

Please provide confirmation

3) that you are satisfied that the insurance criteria on PEDL 165 are met by the operator [PEDL165 is Cuadrilla of course ], and

4) that 'an additional £40M limit for any one occurrence or series of occurrences' is satisfactory, (if this is still the 2018 limit).'

Things went ominously quiet.

On 25 September, she was told that time limit for responding to her request for information needed to be extended.

6 NOVEMBER: THE OGA REPLY

On 6 November 2018, the OGA responded (more than 2 months after her request).

Their actual reply runs to 7 pages - mostly of legal gobbledygook justifying why only one of her four questions has been answered and why the one question that has been answered has had almost all the insurance cover figures and broker/insurer name redacted from it.

Her other questions were dismissed with....

'In relation to the other matters you raise (Requests 2, 3 and 4), you have either asked for legal advice on how insurance policies work or the OGA’s views on certain matters related to that insurance, on which we do not hold the information you have requested. The insurance is in line with general Industry standards to provide the necessary cover in such circumstances.

This concludes the OGA’s consideration of your request."

Technically, again, this is probably an unchallengeable answer (because FoI requests may only seek information that is held, and the way the request is phrased mostly asks for assurances rather than information held), but it is - in our view - an appalling and insulting length of time to make someone wait to be told almost nothing. We think our readers will be shocked by the length of time it took to say so little.

It was becoming clear that she was not going to get what she really sought - which to us appears to be the opportunity to form her own judgement about the scale and scope of the insurances that Cuadrilla held, and the likely extent of protection that holding affords to people in the event of an unforeseen event.

Question 1 is answered

In respect of Question 1, the OGA said her new request was really just for additional information to that which they had originally provided from 2017.

But they did attached copies of communications between the OGA and Cuadrilla that had been received after her first request.

Readers can follow this link to downloadable documents containing the requested information from the 'What Do They Know' website, and might want to form their own view. (Just load the page - which should open in the correct place - but if necessary, scroll to the section headed "OGA FOI requests, Oil and Gas Authority 6 November 2018 "

The first attached document is an email request dated 25 July 2018 from the Oil and Gas Authority for evidence from Cuadrilla's Insurance provider that their Third Party Liability cover for the PNR operations would cover claims for 'frac-induced seismicity damages'.

The second is Cuadrilla's Board's 11 July 2018 confirmation of "sufficient contingency funds for the proposed activities."

However, unlike the 2017 insurance information supplied by the OGA, this document has had all the figures redacted. The name of the broker/underwriter is also redacted.

The third is a letter from Cuadrilla's Board dated 30 July 2018 confirming that the third party liability insurance covers " 'frac-induced seismicity damage'. Once again, this document includes letters from Cuadrilla's insurance broker or company in which almost all of which has the figures and broker name redacted.

HOWEVER, the final page of this document concerns the 'Operator's Extra Expense' - and here the figures have NOT been redacted - (we don't know why this page has been treated differently perhaps it was simply missed when the redactions were being applied to the originals) . It shows a 'combined single limit of up to $25M any one occurrence' and a 'separate limit $1M any one occurrence in respect of care, custody and control'

Two further documents may be accessed by clicking the 'Show All Attachments' just below the first three documents in the list

The first of these additional documents is a copy of the Oil and Gas Authority's letter of 2 July 20218 seeking information from Cuadrilla, and specifically

"Your Board's confirmation letter should include:

  • Confirmation that the funding would cover all the events that might arise from the activities for which you are seeking consent;
  • Your considered opinion that the funding for such unexpected events is sufficient in the circumstances; and
  • In the case that funding will flow from an insurance policy, the lead underwriter, the date of commencement and duration of cover and confirmation that the funding will be available immediately should an event or events arise.'

We presume this was actually the OGA's first letter to Cuadrilla seeking further information, and their email of 25th July was in pursuance to it.

The second and final downloadable document in the list is the 6 November 2018 letter from the Oil and Gas Authority to the lady whose correspondence we have been following.

Having said they have answered Question 1, the OGA then go on at length to explain whey they have redacted almost all the information about the extent of cover, and the identity of the Broker/Insurer Cuadrilla have used.

They say the names, signatures and contact details in the disclosed correspondence have been redacted. The redacted information is said to be being withheld because it is personal data and therefore exempt from publication (that's our take on their wording).

The identity of the insurance provider, the insurance policy itself, including level of cover, policy number, and total liability, is claimed to be exempt from disclosure because it was obtained by the OGA from an other person, and disclosure would constitute a breach of confidence actionable by that or any other person.

At this point, the OGA seem to be arguing that they want to keep Cuadrilla's confidence so that they get to see it. So they're not prepared to make it public because Cuadrilla could bring a legal case against the OGA for breach of confidence and the OGA considers that such as action would be likely to succeed.

We're not impressed.

If that's the case we have to wonder why they provided the details of the cover and liability limits to the lady in their reply to her in 2018 which we have detailed above?

What has changed a year or so later to make it no longer appropriate to provide the new figures for the same details they had already provided?

They do say that they have applied the 'Public Interest' test to the decision not to provide it. On this matter they conclude:

"In this particular case, the OGA considers that the appropriate balance has been struck between transparency in letting the public know that an adequate level of insurance is provided for and preservation of the legitimate economic interests of the company concerned.

The OGA does not consider that revealing the identity of the insurance company would be of any greater service to the public that would outweigh the genuine harm that could be brought to Cuadrilla and the insurance company as a result."

Is this supposed to be a Regulator speaking?

Some might think a suitable riposte to their nonsense would be to quote the ever-present spirit of Mandy Rice-Davies and her oh-so-apt phrase of 'Well, 'e would say that, woul'n't he'

They also say they are withholding the broker's name because of 'commercial confidentiality' and explain that....

"Disclosure of the identity of the insurance provider the level of cover and the policy exclusions, would disclose the terms on which Cuadrilla was able to obtain the policy. Such disclosure would or would be likely to prejudice the commercial interests of Cuadrilla by weakening its bargaining position in a competitive environment.

Further, disclosure of the requested information would disclose to Cuadrilla and the insurer’s competitors, the terms on which the insurance policy was being provided.

This would, or would be likely to, prejudice the commercial interests of Cuadrilla and its insurers."

However, it seems to us that at the OGA, incompetence trumps secrecy.

We say that because although they have refused to reveal the name of the broker, we think we are now able to do so for our readers.

That's because as well as apparently failing to redact the figures on the page marked 'Operator's Extra Expenses' that we have mentioned above, they have also failed to redact what appears to be the name of the broker in one of the paragraphs.

In the third of the downloadable documents we listed above, Cuadrilla's 30 July 2018 letter and enclosures confirming that the third party liability insurance covers 'frac-induced seismicity damage', page three lists a series of qualifications that limit some of the circumstances of the Insurance.

Paragraph 1 of this section begins with a redacted word (which seems to be the name of the broker)

".......... does not in any circumstances act as insurer or reinsurer, nor does it warrant the solvency of any insurer, reinsurer or market."

It then goes on to say

"Willis cannot warrant the continuing validity or extent of the insurance available....."

So there it is - the broker that Cuadrilla were, (or maybe still are) using is probably called Willis - and there are not many brokers with that word in their name.

The conclusion of the OGA's letter said if the lady was not satisfied with the answer they had given, she could ask for an internal review.

Within a couple of days of their reply the lady had indeed asked for an internal review. She said

"It is clearly not in the public interest to withhold this information; the public should be entitled to know to what extent the public indemnity cover is adequate in the event if an operator causing adverse event damaging life or property."

You just know where this is going to go dear reader, don't you?

She had asked for the review on 9th November 2018. She was told they were considering the matter and hoped to be able to respond in a month, by 9th January 2019.

On 25th January they did respond.

They confirmed, (with more detailed justifications) that the original exemptions were appropriate.

But because the lady had made the point about the Public Interest, they went into length to say why it was not in the public interest, and we've reproduced most of what they said.

We find some of it unbelievable. They said:

17. "The assertion that “It is clearly not in the public interest to withhold this information; the public should be entitled to know to what extent the public indemnity cover is adequate in the event if an operator causing adverse event damaging life or property” assumes that the information typically contained in such insurance cover would be of immediate value to the public by detailing exact costs for various goods and services beyond what was already known and in the public domain anyway.

18. The OGA does not consider that this request meets the criteria for such circumstances - as the “public good” would not be satisfied by releasing the information in question, not least as it is only of interest to the “private interests of the requester” and a limited number of other people directly involved.

19. Indeed, the release of such information would be contrary to the public interest as such disclosure is likely to impact adversely the particular commercial interests of the companies involved (as previously referenced) and discourage companies in the OGA’s jurisdiction and other third-party organisations from sharing information with the OGA. This would adversely affect the consideration by the OGA of the licensee’s licence application as well as the licensee’s commercial (including intellectual property) rights.

20. Further, licensees would be less likely to provide the levels of information they currently do in future applications were it to be disclosable in this way, and this in turn would likely inhibit the OGA in the discharge of its licensing functions and the matters to which it must have regard including maintaining a stable and predictable system of regulation which encourages investment.

21. It should be noted that, in both the answer to your original request and in answer to your earlier request (FOI-2018-0011 – again regarding Cuadrilla’s insurance), that the higher level/overall cover figures of: £40m GBP for Excess Public Liability, Excess Pollution and Excess Product liability; £10m GBP for one occurrence of Public Liability, Pollution Liability and Product liability; $25M USD for Onshore Property and Operators Extra Expense under the Energy Package and $1m USD in respect of any one occurrence in respect of Care, Custody and Control were all disclosed and provide the public with the high-level details of Cuadrilla’s cover.

22. I consider that the appropriate balance has therefore been struck between providing assurance to the public and safeguarding genuinely sensitive commercial information received from the licensee/operator.

[.......]

25. This concludes my review of the handling of your request. I have found that the OGA did apply the exemptions/exceptions correctly and am therefore not, on this occasion, recommending the release of any further material. "

 So what to make of all this.

We're most unimpressed; but not altogether surprised.

It's part of the Government's drive to ensure a fracking industry is established in the UK irrespective of the number of laws and protections that have to be changed or abandoned in order to do so.

It's bad enough as it is, but we invite our readers to go back over this list of mealy-mouthed exemption claims from para 17 to para 25 above with a different head on.

Go back and re-read the content as though the Lady whose Freedom of Information request we have been following was being refused information about the safety of fire escapes and new cladding arrangements in a refurbished building - just a few months before the Grenfell Tower fire.

We think the sort of evasion practiced in the OGA's refusal of her request is fittingly emblematic of the condition that is causing the malcontent, anger and distrust of so-called experts displaying a 'we know what's best for you' mentality, and causing the rapid rise in an unwillingness to trust 'experts.'

A state of affairs that is now seamlessly transferring to politicians.

If you want to see the logic that underpins the distrust of officialdom, you need look no further than this reply to the Lady from the Oil and Gas Authority.

Not least because it comes from an outfit that hasn't even got the competence to get its redactions done properly!

We have no idea whether the figures from 2017 (quoted in paragraph 21) have simply been uprated each time they have been renewed, or whether some have been increased and/or others decreased or otherwise changed. Nor do we have any idea whether they were approximately correct or not in the first place.

And based on the comments (and the incompetently prepared information) the lady received from the Oil and Gas Authority, some might question the value of Cuadrilla's reliance on regulatory assurance such as:

"Cuadrilla’s fitness to operate including arrangements for potential pollution liability and insurance cover have been fully assessed by the appropriate regulatory bodies and been found to fully meet requirements."

For ourselves we would simply say that whilst multi-million figures-worth of insurance cover seem huge in relation to everyday spending of ordinary folk, we seem to remember that simply to hire a football pitch in Fylde, the Council used to (if not still does) require evidence of £10 million public liability insurance cover by the group asking to hire it.

That's £10m cover just for a game of football.

But we do know there are people out here who can make such judgements, and we hope our tuppence worth of highlighting the matter might bring it to a wider audience.

And we're grateful to the lady who was so persistent in her quest that has allowed us to do so.

 COURT CASE

We missed something fairly significant in recent months. Something that, in a way, links to what Dr Thornton told  a Conference at Ribby Hall (see the next topic) about national Planning laws constraining what local councillors may, or may not, say.

In his case it was about the health implications of fracking (which he said have been designated as not being a material consideration in relation to planning permission for fracking).

The Government's 'loose leaf' and easily amendable and web-based 'National Planning Policy Framework' sets out what may and may not be taken into account in various aspects of local planning.

The last section of 'The Framework' (Section 17) deals with 'Facilitating the sustainable use of minerals' and within that section, is a sub heading of 'Oil, Gas And Coal Exploration And Extraction'

Paragraph 209 of that section opens with: 'Minerals planning authorities should:' and a list of 'instructions' follows the colon.

In our case, because we are a 'Shire County' the County Council is the Minerals Planning Authority, so this section of the NPPF is an 'instruction' from the Government to Lancashire County Council about what they should do in relation to exploration and extraction of what have become known as 'fossil fuels'.

And the first sub paragraph of that section says the County Council should: ....

Readers might like to note the use of the word 'should' here.

Under normal circumstances (say in a piece of legislation) the word 'should' indicates an optional case, ('We'd like you to do this, but it's up to you') as opposed to the word 'must' which is mandatory, and no other option is possible.

However in the 'National Planning Policy Framework' barristers dine out on interpreting the meaning of words and the 'weight' to be given to them when arguing planning matters.

Here, 'should' often sits very close to 'must' because the ultimate decision taken on a Planning Appeal is the decision taken by the person who wrote or amended the NPPF in the first place, and is likely to come down on the side of what they have previously said 'should' happen.

So, back to the main plot, the County Council 'should'

"a) recognise the benefits of on-shore oil and gas development, including unconventional hydrocarbons, for the security of energy supplies and supporting the transition to a low-carbon economy; and put in place policies to facilitate their exploration and extraction;...."

Way back in 2015, in our article 'Render Unto Caesar' we reported a leaked letter from George Osborne requiring Ministers from all the main Departments of State to 'get behind' fracking in order to support the industry. (Readers can follow this link to download a copy of the letter).

Ministers set to work to do his bidding - probably most notably Amber Rudd and Greg Clark who began to talk up the UK's embryo fracking industry with a vengeance.

In September 2015 Amber Rudd the (then) Secretary of State for Energy and Climate Change issued a bullish 'Written Ministerial Statement' (WMS) emphasising support for shale gas to "secure energy supplies, economic growth and lower carbon emissions".

This WMS statement formally replaced the shale gas and oil policy statement that had been issued Government Departments earlier that year.

We recall a lot of argument about it in the first Public Inquiry into Cuadrilla's appeal against LCC's refusal of their planning applications (held at Blackpool Football Club in early 2016, and which we reported in detail over several weeks)

The statement sought to give ministers the right to intervene in deciding planning applications and appeals for oil and gas - and two main arguments were rehearsed at the Inquiry.

Firstly, Mr Evans (Barrister for LCC) had argued that whatever the Minister or Government had said in its Ministerial Statement, whatever it had set out in its National Planning Policy, the Policy would trump the Statement.

Secondly there was a long (and often-raised argument) - chiefly by Barrister Estelle Dehon for Friends of the Earth - that the Government's obligation sunder the Paris Climate Change Agreement was in conflict with the Written Ministerial Statement - essentially promises made by the UK Government under the agreement didn't stack up with promoting a new fossil fuel industry.

There was a lot of debate on this matter.

Following the Appeal, Planning Inspector Wendy McKay's report went to Government and the Minister responsible at the time came to some views about this matter (expressed in Paras 35.36,and 37 of the decision notice where he said

"...he agrees with the Inspector’s conclusion that the issues raised as to how shale gas relates to the obligations such as those set out in the Paris Agreement and the Intergovernmental Panel on Climate Change carbon budgets are a matter for future national policy and not for these appeals"

So in effect the Minister put fingers in their ears and did a 'La la la la la la" so far as this matter was concerned at the Inquiry.

With so much having been made of this aspect - which is something that runs extremely close to the heart of those who are ideologically opposed to fracking - it was never going to rest there.

And in 2017, a group called 'Talk Fracking' commissioned 'Mobbs' Environmental Investigations' to produce a report for them

Paul Mobbs is a freelance researcher, writer and environmental consultant specializing in the needs of community-based campaigns, NGOs and small companies. His work chiefly covers planning, pollution and environmental regulation; the work of local and national government related to historical archive research.

The report he produced was called 'Whitehall’s Fracking Science Failure: How the Government Has Misled Parliament and the Public on the Climate Change Impacts of Shale Oil and Gas Development in Britain.' Readers can follow this link to download a copy.

(Readers will also probably see from his heading why he says he works mostly for community groups - and not for the Government!)

The report seeks to demonstrate that fracking in the UK will mean we do not remain within our requirements under the Paris Climate Agreement, and that fracking itself also contradicted the fundamental principles of the Climate Change Act.

He argues that fracking is not the 'energy bridge' between now and the low-carbon future that the Conservative Party have been promoting, and that Government and Industry should not have relied this argument to formulate planning policy and support for fracking.

Using his report, 'Talk Fracking' sought and won permission for Judicial Review of what had originally been a requirement from the (then) Chancellor George Osborne, translated into a Written Ministerial Statement by Minster Amber Rudd, and eventually incorporated into the National Planning Policy Framework.

'Talk Fracking' argued there was no public consultation involved in formulating this policy, nor had there been consideration of international scientific developments on climate change, emissions, and so on.

Hearing the case, the High Court in London ruled that adopting Paragraph 209(a) into the NPPF was unlawful because the government had failed to take into account the scientific developments over low-carbon claims.

The judge also said the government failed to carry out a lawful public consultation on the revision of the policy, and that it breached the 'Sedley Principles' which set out the requirements for a full and lawful consultation exercise, adding that the consultation on the draft revised Framework was so flawed in its design and processes as to be unlawful.

Whilst this was good news and a welcome fillip for those for those who brought the action, and it undoubtedly makes the Government's case more difficult to promote, a determined Government - as this one undoubtedly is in relation to promoting fracking - is most likely going to find a way around the obstacle.

And as an endpiece to this part, we might also reflect on the terrific job that George Osborne and David ('Call me Dave') Cameron made of their time at the head of our Government - the Brexit ramifications of which we are still experiencing.

 CONFERENCE REPORT

In our last fracking report 'PNR: What's Going On?' on 4th January 2019 we said:

".... if our own belief is correct, and Cuadrilla has effectively closed down Well No 1 at Preston New Road, and the shortfalls in their geological interpretations are as Professor Smythe believes, and these shortfalls have already been drawn to the attention of the Environment Agency who are currently examining them in detail, then it's very likely it will take some months for the EA's geological experts to see whether what Professor Smythe believes is correct or not."

So it was with some interest that we, (together with another 300 or so people) went to listen to Prof Smythe at a Public Conference at Ribby Hall on Sat 9 February.

There were three main speakers, together with representatives from community groups at Preston New Road and Roseacre, and a Q&A session for everyone at the end

The main speakers were

 Sharon Wilson

A Texan who had worked in the oil & gas industry for over a decade, but was now with US environmental group Earthworks. She has briefed NATO and the U.S. Environmental Protection Agency on the impacts of oil and gas extraction, and she spoke from personal experience of fracking in the US.

She spoke with conviction and passion and clearly had her community at heart because her talk was illustrated with photos of her small community banding together to oppose fracking in their area.

For ourselves, and on the big-picture level, we find most stories about what happens in the US are so removed from what happens in the UK that we sometimes struggle to see their comparability.

That's not intended to be a 'pro fracking comment', nor to damage the anti-fracking case. Its simply that, as we see it, the scale of unpopulated or extremely sparsely populated tracts of land in the US bears little relation to the dense populations in the UK.

Furthermore, the water sources for those US scattered rural households in the US is usually wells and boreholes which are at greater risk of geological contamination, where in this part of the UK most of our water comes from Thirlmere and elsewhere in the Lake District, only about 10% or so comes from wells or boreholes at certain times.

There are also significant differences in the regulatory regimes in the UK and here, and in its accountability. The US medical systems are more like businesses and are nothing like the NHS - and so on.

So whilst it was good to see how small rural communities were trying to gear up to oppose what was happening, we thought the local community groups here were probably further along the road, and had more experience of community engagement.

 Professor David Smythe

Emeritus Professor of Geophysics, from the University of Glasgow, spoke on the environmental impacts of fracking the Lancashire Bowland Shale. He's flown over from France that day to speak at Ribby Hall.

To be honest, first impressions were not what we had expected.

Our mind's eye had imagined someone more formal and having more (can't exactly find the right word, but 'gravitas' is close) than he presented on sight.

But his informal style belied a clear and critical (in both senses of the word) mind that revelled in 3-D geological surveys that, to us, were even more complicated than a 3-D Brexit conundrum might be.

His topic was "The Impacts of Fracking on the Lancashire Bowland Shale" and, as so often with good speakers, he opened with a 'rocket' - saying....

"I like to use the Cowboy metaphor for fracking.

Cowboys as in the sense of, you know, cowboy builders, not the romantic Roy Rogers and Tex Ritter"

He move onto what he called 'the cowboy culture of the fracking industry' adding

"I have been involved in the industry for a long, long time, 30-40 years, and in the old days, say 30-40 years ago, I knew perfectly well when I worked for Government, the industry were liars from time to time. But at least they were technically competent liars. They knew what they were doing when they were exploring and drilling.

Now there's a [indistinct word - operation? co-operation?] new breed of cowboy frackers in Britain, they're both liars, mendacious and they're incompetent. I drew up a table here, I'm not going to go into detail on it, but it's varied examples I've come across of the various fracking companies.

Of course Cuadrilla is of most interest to you guys here in Lancashire, and here there are instances of where they're either telling fibs or worse than that, or just being blatantly incompetent technically speaking.

Now I'll give you an example of that from a mile or two away at Preston New Road toward the end of my talk"

Wow. This was strong stuff.

But did he have the factual scientific information to back up these claims we wondered?

The answer was that he did (at least as far as our non-geological-expert brain could judge).

He said his main concern over many years had been about the peculiar aspects of geological faulting - which is very important in Britain.

He went on to show some of the images (that looked like the ones we had used from Cuadrilla's Hydraulic Fracking Plan) and that we'd used in our 'The Nitty Gritty' article of November 2018 as a section through the earth. He described such images as 'cartoons of fracking' and said as an expert geologist they were absurdly over-simple.

He suggested that for some areas of the US they might be a realistic representation, but in Britain, the geology is cut up by large faults. He said he had worked out that, on average, faults are typically 500 times more common in British geology than in US geology. He also said

"and theoretical modelling studies show that the nasty products from fracking at depth do flow upwards, up to the groundwater near the surface.

The only argument amongst scientists is the timescale - is it over a few months or a few years, or even millennia. That's the only argument we're left with. How long does it take for the contamination to reach the surface."

Using a geological cross-section of land from the Bowland fells to the Fylde coast, he outlined the geology showing it was "highly faulted" saying for year he had been trying to get the detailed geophysical information in the form of a 3-D Seismic survey of this area from the Oil and Gas Authority.

He said it should have been released on 1 January 2018 and he had pre-ordered it and with some colleagues was ready to pay the £2,500 to buy it so they could work on it together.

But the OGA refused to release it, although legally it had to be released on 1 January.

He said the OGA's excuse was that Cuadrilla had asked for them to hold it confidential because they wanted to trade it, because the data still had some value.

He said that was a complete fabrication, there was no story about the data being valuable, and in any case it was breaking the law.

He said Cuadrilla went ahead and drilled the wells in 2018, and the OGA had commissioned a report from the British Geological Survey (for whom he said he had once worked). This had confirmed what they thought about the geology. Their evaluation of the geology at Preston New Road seems to be OK.

And all this time, they had prevented Prof Smythe from getting his hands on the crucial 3-Dimensional seismic data. He said

"Well, I got a very good lawyer to write and she persuaded them, they finally released it in October of last year.

Now the problem with Cuadrilla, this is just technical incompetence, never mind their lies, is that they have to submit a Hydraulic Fracturing Plan, and here's how it's changed over about eight months from November 2017 through to last summer."

At this point he put up slide (that we don't have), so we hope readers will bear with us as we whistle through what he said

"So this is an East West geological cross section. The version is [indistinct couple of words] ago. Look at the brown layers in here, that's highlighted how, after they had drilled PNR1 and 1Z, they had to change the geology. So the Millstone Grit in this layer that they thought they would find originally, turned out to be absent from the well.

So all they did was a fiddle.

This is not a real geological re-working, just a fiddle. They just changed the cartoon - to bring the base of this layer up, to avoid its going through the [indistinct word "wellbore"?], and they changed the fault slightly.

And then, even more recently, they've now, they've altered that side of the wellbore, which is running down here. And now they've altered the geology a bit on this side.

But these are just cosmetic alterations to try and make the Hydraulic Fracturing Plan pass muster, so that the EA will cave in and give them a Hydraulic Fracturing Plan.

And I find this to be unacceptable. What they ought to do is re-do the geology properly."

Readers probably won't follow what he's describing here without the visuals, but to see what he's speaking of, you can refer to our 'The Nitty Gritty' article which has most of the images he used in his talk in our section of that article called 'In the Grit'

Speaking of the 3D Seismic survey he eventually obtained, and how the central part of it was more reliable than the edges, he said

"....You can see that PNR and Preese Hall are on the edges of the 'good;' part of the survey, and Roseacre Wood, if and when they come to drill and fracture that, lies outside the fringe of the good quality data, so they'll be working with bad quality data there.

So this is bad timing by Cuadrilla, this is back in 2012. They should have made the survey a little bit bigger.

Now the combined Oil and Gas Authority, British Geological Survey interpretations - they're trying to say, well, we've done and independent study of this, independent of Cuadrilla, and everything is hunky-dory. We've identified where the faults are and where they aren't, and everything is basically OK.

And the Oil and Gas Authority is saying they've mapped these horizons - the ones in the post-carboniferous-age rock, and now the ones in the carboniferous in the Bowland shale.

But they've left off the Millstone Grit.

This is the crucial horizon, the crucial layer, which Cuadrilla expected to find 300m of when they drilled Preston New Road 1. But it wasn't there at all.

This is a major geological error on the part of Cuadrilla.

But, unfortunately, it appears to me that the OGA is sort of backing up, by withholding some maps of the Millstone Grit in particular, from public release.

What the OGA has done, is publish a little report with some useless pictures like this, which look all very impressive to the non-expert. It's a view looking into the ground to the North West and it shows the wellbores coming down. They don't even tell you what geological layer this blue-coloured horizon is, so its really, its just a cartoon picture saying 'well yeah, we've got a picture of some geology but it's not really giving anything away."

Overall he postulated that Cuadrilla's interpretations of the seismic data was not reliable, and he believes the second well at Preston New Road should not be given permission to be hydraulically fractured until his conclusions from his expert examination of the 3D data - in which he claims to have solved the problem of the 'missing' Millstone Grit - has also been considered.

To our non-expert understanding he seemed to be saying that it was all to do with a 'reverse fault' (whatever one of those is) that had not been properly assessed in the data.

Continuing his original 'Wild West' cowboy analogy, he said:

".... Cuadrilla's latest, desperate effort to keep fracking in Lancashire, they published a release just a few days ago - I call it 'Cuadrilla's Last Stand' [laughter] 'Custer's last Stand'.

They're still getting the geology wrong. This is as of 6th February. They're still putting in a huge layer of Millstone Grit here, but it's magically just missing the two wellbores or should I say the three wellbores. So they're still persisting with this bodge-up geological interpretation......"

He went on to say

"So, I've got a very old friend, a brilliant lawyer called Kate Harrison in London who I got to write on my behalf the Environment Agency suggesting very politely, and with a 40 page report included, written by me - so politely threatening shall we say, the Environment Agency - will you please consider Professor Smythe's report enclosed with this letter, before you issue a Hydraulic Fracturing Plan for Preston New Road No 2.

So this was sent off on the 14th. They responded quickly saying 'Yes', they will consider these new findings. And as of yet we've had no reply - which in a sense is good news. So I suspect they've had to go back to Cuadrilla and tell them to - you'd better get the geology right this time, and don't just keep bodging-up the old [indistinct word].

I hope at this time to delay progress on this front of fracking Preston New Road No2."

He concluded by turning to the traffic light system saying

"But the latest piece of news, as you've no-doubt heard is they're now bringing a couple of - I have to say, rather mediocre, scientists - onside.

Funnily enough one of them is Dr Brian Baptie and he works at the BGS where I once worked as well.

He was one of the guys who drew up the criteria for the traffic light system of the earthquake triggering.

If you exceed 0.5 local magnitude, you have to stop, and so on. He was responsible for drawing all this up, and now he's had his arm twisted by Cuadrilla to say that well, the level's really a bit low, and there's a guy from Liverpool who's a bit of a - well, I can't even remember his name - so they're backing Cuadrilla in pleading with the Government to up the limit so they can carry on fracking.

So one of the pressures we have to keep applying is not let the Government up the limit on the magnitude of earthquakes above which they have to stop fracking. Because that was designed for what's going on under the ground. Whether you shake a few buildings or whether it's felt at the surface is actually completely irrelevant.

What matters is what's going on down at 2 and 3 Km depth. Can it do damage down there? That's what matters".

Despite our initial surprise as he appeared on stage, we found his presentation hard-hitting and cogent.

We are also quite pleased to have spotted - in our 7 November 2018 - article the matter of the 'missing' Millstone Grit, and in our 4th January article where we said

".... if our own belief is correct, and Cuadrilla has effectively closed down Well No 1 at Preston New Road, and the shortfalls in their geological interpretations are as Professor Smythe believes, and these shortfalls have already been drawn to the attention of the Environment Agency who are currently examining them in detail, then it's very likely it will take some months for the EA's geological experts to see whether what Professor Smythe believes is correct or not."

And that, of course could be why a lot of the hired kit was taken away from site, not much has been happening since Christmas at the Preston New Road site.

After the event, Prof Smythe published a technical paper We address that matter as a new item toward the end of this article.

 Dr Tim Thornton

Dr Thornton is a retired GP from Ryedale, and he spoke about the potential health implications for residents living near fracking sites.

To be honest we've heard much of this topic exercised in the various Public Inquiries at the time planning permissions for fracking were being sought, but he delivered a human-scale version of the technical medical data, and did so rather well, we thought.

He also has a nice line in self-deprecating humour. He opened with....

"Thankfully, medicine is an awful lot easier than geology. It was Voltaire I think, who said that 'the doctors job is to entertain the patient whilst nature did the healing.'

He said the adverse health impacts chiefly affected the young, the poor, and the disadvantaged.

He said he began his interest in health and fracking by reading various published medical reports, both independently reviewed and 'grey' (which are often promotional and aspirational reports).

He then said he looked at what Westminster had said - and he quoted David Cameron speaking about a year ago to the Oil and Gas industry in America.

"We passed laws, changed the planning rules; talked to the companies; changed the regulations; set out the bonuses communities would stand to get if wells went ahead. But it was painfully slow, and incredibly frustrating. The Green movements have become absolutely obsessed. So they are just as opposed to fracking come what may"

Dr Thornton went on to say that Government redefined what fracking was; they redefined the difference between conventional and unconventional gas extraction; adding

"They made it so that health is no longer a consideration in planning terms. And normally, if you're going to build a rail or an airport or a supermarket, you ask ' well, is it going to impact on health to the local communities.

Well, sorry, chaps, Health is not a material consideration, and I just get sidelined when I talk to the County Council."

'So they bullied the Councils. The Government bullied the councils to believe they should not discuss, debate, or vote, on fracking issues. '

He said they had treated Lancashire councillors exactly in that way. They could lose their homes if they didn't pass the planning application, adding

"And they bullied me on many occasions at Ryedale, saying that I could lose my house if I voted against fracking issues because I had been pre-determined. In other words I had thought about fracking before I voted"

We were especially interested in this comment because we didn't understand the process by which any councillor might lose their house by voting in a particular way.

This is because most councillors are covered by a form of 'professional indemnity' insurance where, if they are legally challenged over something concerned with official business, the Council's insurers will pick up the tab for legal costs to defend the councillor, so we spoke with him afterwards and asked for greater clarity.

He said he had been advised that if he voted outside the specific rules that limit what you may consider in a debate, he would not be covered by the Council's 'professional indemnity' [our shorthand] and thus could be open to legal action from the applicant for considering matters that were not part of the matters that were allowed to be taken into account.

So if, as his example, as a Planning Committee councillor and a GP, you wanted to base your decision in part on matters affecting public health, and the Government has declared that health is not a material planning argument in fracking (or any other matter), then if you speak and make public your belief during the debate or in the vote, the Council's insurance would not cover you, and you would be at risk of legal action by the fracking company, the defence cost of which you would have to meet personally.

We'd not heard about this before, but we could see the point he was making.

He went on to say the UK government has no intention of baseline monitoring, nor ongoing monitoring of health impacts for residents who are within proximity of shale gas exploration sites.

We suspect that might not be correct at Preston New Road which' as far as we understand it, has at least some baseline monitoring, but perhaps he was speaking of a situation after PNR was granted.

The session concluded with short latest news updates from officials of the Preston New Road and Roseacre Awareness Groups - who acquitted themselves very well and professionally. A credit to their communities.

Altogether a good, informative conference we thought.

 FLUID CHANGE

We think we're starting to see a common 'modus operandi' being displayed by Cuadrilla. And it's not one we like very much.

It's a process frequently used by building developers who - in order to get planning and other regulatory body permissions - promise whatever is necessary to reassure planners and the public that what they are proposing will be fine; only to go back and secure change to what they originally promised to something more acceptable to them and less acceptable to the public; perhaps even to something they might not have been able persuade regulatory bodies to grant in the original application.

It's what might be called the 'Thin end of the wedge' approach.

One of the most clear examples of this was Cuadrilla's Traffic Management Plan. It was considered and approved by Lancashire County Council to ensure that sufficient road safety measures were in place, as Cuadrilla created a new access capable of dealing with very large vehicles on Preston new Road.

At the Roseacre Wood Public Inquiry, Mr Evans (Barrister for LCC) asked about the Traffic Management Plan for Preston New Road and specifically about it's requirement for no right turns out of the site onto the main road. He said this requirement alone had been breached 248 times between 17 January 2017 and 30 March 2018.

Mr Lappin (for Cuadrilla) said there had been breaches but he disputed the number quoted. He said there was 1 breach in the first quarter; 3 in the second quarter; 1 (a convoy of 27 vehicles delivering the drilling rig at night) in the third quarter; and 3 in the fourth quarter. (Eight breaches in total, not 248).

He went on to explain the dichotomy in the numbers saying that in his view, if they asked the police, and it was agreed that it would be safer to exit the site by turning right, then he didn't recognise that it was a breach of the agreed Traffic Management Plan.

Mr Evans said that if the plan said there should be none, then it was a breach. Mr Lappin disagreed strongly and said "No. Not if the breach is authorised"

There have been several other matters where original undertakings have been discarded, or where authority is sought to vary the original undertaking.

Most notable in this regard in recent times is Cuadrilla's current call to the regulator for the Traffic Light System to be changed.

If change is approved, this would remove the safety measure that requires a pause in the fracking process after a 0.5 local magnitude earthquake to see if, and how many, and the strength of, subsequent earthquakes triggered following one that occurs during the process to fracture the underground rocks.

That system started out life as Cuadrilla's own proposal to assuage public and political concerns. Now they want to change it, saying they cannot frack properly unless the process they devised and the limit they agreed is abandoned and a less onerous limit put in place.

We now see yet another - completely separate - wedge of changes being prepared by Cuadrilla.

This time, the headline changes sought are about 'fracking fluids', (but in reality the application to vary their environmental permit is much wider).

The Useless Environment Agency issue these licenses to pollute and by-pass the regulations that almost everyone else has to abide by under a 'coach and horses' provision known as their 'Environmental Permitting Regulations'

In effect these are (and in some cases could literally be) a 'get out of jail free' card issued to allow the by-passing of normal regulations.

Originally, 'Environmental Permitting' was a sensible concept.

Its origins lie in being able to desist from a mandatory requirement to prosecute someone who has caused pollution if it arose outside their control and they are doing everything possible to stop and fix the problem. (Imagine if terrorists blew up a sewage treatment plant and raw sewage was escaping. No point in prosecuting the sewage company as they pull out all the stops - or in this case put in all the stops - to fix things).

But Environmental Permitting Regulations have been allowed to 'mission creep' to become equal in regulatory stature to the purchasable indulgences sold by the Roman Catholic Church in the middle ages.

They too preauthorise the committing of 'sin'.

That's partly why, (and even more especially because of their willingness to fiddle the Bathing Water classification results in the North West), that we now call them the 'Useless Environment Agency')

And if Cuadrilla's latest application (to vary what it said it would do to protect the environment) are granted, we understand it will be the ninth variation that the Useless Environment Agency will have permitted.

Cuadrilla see things differently of course. Nick Mace, their 'Environment Manager' said:

“We have submitted an application for a permit variation to the Environment Agency which is open to the public who can view and comment on the application. We have varied the permit before and the public have been able to comment multiple times since the permit was granted in 2015. The process is no different this time and people can provide feedback if they would like to.

The reason for the proposed variation is that we’d like to modify our fracturing fluid so that more sand can be carried into the shale rock with the water when we re-commence hydraulic fracturing operations at the Preston New Road site.

To do this we propose to add some chemicals which have already been approved for use elsewhere in the UK by the Environment Agency.

The fracturing fluid will remain non-hazardous to groundwater, as it must do under UK regulation, and additional additives we are proposing to use are commonly found in food, toiletries and other products used around the home.

The full list of additives Cuadrilla has asked for permission to create the fluid can be found in the permit variation.”

he added:

“People should be reassured that this proposed fluid composition is non-hazardous to groundwater and Preston New Road is the most intensely monitored oil and gas site in the world. Cuadrilla remains absolutely committed to unlocking the potential of shale gas in Lancashire in a safe and environmentally responsible way."

Hmmm. Is it just us or should more people be worried that the description of proposed chemicals is non-hazardous to groundwater? (We don't see any mention of them being non-hazardous to people or livestock or wildlife or soil for growing plants in, or drains and rivers, for example)

And as far as we can see, the phrase: 'chemicals which have already been approved for use elsewhere in the UK by the Environment Agency" could include an awful lot of stuff - especially when you think what chemicals CAN be used by industry.

And Cuadrilla's simple focus on the chemicals is not be the whole story.

The variations sought by Cuadrilla include

  • Changes to the composition of the permitted fracturing fluid
  • Refining arrangements for the management of wastes
  • Updating requirements for environmental monitoring of surface water and ambient air quality
  • Clarification that hydraulic fracturing may be conducted during more than one occasion along a lateral well.

So we had a quick look at some of these other matters as well.

 Fracking Fluid Changes

When they have undertaken fracking at PNR, Cuadrilla have caused multiple earthquakes greater than 0.5.

Because of this, they have not been able to frack 'hard' enough to push sufficient sand into the fractures to hold them open and allow the gas to flow out when Cuadrilla's massive rock-fracturing pressure is removed, and the rock tries to settle back to its previous state.

So they now want to change the chemicals they add to the fracking water so they can get more sand in - probably by using a bit less pressure, so they don't get the same magnitude or frequency of earthquakes.

Cuadrilla made a great play about the chemicals they would use to create the fracking fluid at the time planning permission was being considered.

They said that unlike other countries, in the UK they would only be using two chemicals: polyacrylamide (which is a friction reducing agent) and hydrochloric acid (as a cleaning and biocide agent) and these would be very dilute in large volumes of water.

From what we can see, the variation now seeks permission to use anywhere up to around 40 different chemicals - potentially in a cocktail to suit what Cuadrilla think will work best for them.

Chemists we're not, but those out there who are can follow this link to download what we think is the list of the chemicals as Appendix A ( Drilling Fluid Additive Disclosure) of the application documents, or as Appendix F (Chemical Additives)

 Refining Arrangements For The Management Of Wastes

We're not sure how many 'refinements' have been proposed (There is a plethora of long documents in the application), but one 'refinement' seeks permission to use added propane to help burn any gas that comes out from the well during its testing phase.

We're going to have a look at this in more detail later in this article.

Cuadrilla also wants the permit to 'update' (in fact to reduce) the frequency with which it undertakes surface water monitoring which, it says, is more proportionate to risks presented by the site. It now wants to do this monthly.

We and our readers have seen photos of the site being flooded in heavy rain - because they had isolated the site from the surrounding ground with an impermeable basin arrangement with, initially, no means of dealing with accumulations of rainfall in the basin.

They later devised a workaround of this initial planning failure by securing another permission from the Useless Environment Agency to discharge accumulations into the nearby watercourse after regular tests to monitor its chemical composition.

We've also seen pictures that appear to show flooding water from the basin leaking over the collecting holding area / drain (created for eventual discharge into the brook) and out into the surrounding land.

Either way, they appear to want to reduce the frequency of the checks they make on the accumulations before discharging them into the watercourse.

 Air Quality Monitoring

On air quality monitoring, Cuadrilla wants to stop collecting data on a range of airborne pollutants outside its site. They seem to be arguing that all the air quality monitoring can be done on site.

We struggle to work out how monitoring within the site can possibly show the geographic extent to which any escapes of gases or particulates have arisen, or what the concentrations are as they mingle with the air at varying distances from the site, and indeed, in which direction the fugitive emissions might be heading.

We're going to look at this in a bit more detail later in the Article.

 Repeat Fracking

A variation of permission is also sought to 'clarify' that hydraulic fracturing may be conducted during more than one occasion along a lateral well.

At present, we don't understand why a separate permission for this is necessary, and if any of our readers can advise further we'd be interested to hear it.

 Consultation Responses

At close of play on 20th March, the Useless Environment Agency says there are 144 Published Responses. (There might be more, because not everyone who commented granted permission for their comments to be published).

In our view, a public consultation should allow NO anonymity.

We had a quick random look at some of the published ones.

Most we saw in our - unscientific and random - sample were 'Just stop it' messages.

Others ranged from short, pithy comments, through pleas, to occasional rants, and on to what, to us, seem to be quite scientific arguments.

Here and there a pro-granting supportive comment popped up (say 2 out of 30)

Readers who'd like to see the responses can follow this link and view them.

We've also had a 'copy response' sent to us by a reader who included his name, and we were invited to publish it. Interested readers can follow this link to download it.

The Useless Environment Agency are considering the application and the responses, and will deliver it's decision on the changes that Cuadrilla have requested.

 VENTING - OR NOT?

There's been something of a row over air quality, its monitoring, and what emissions have been either knowingly or unknowingly discharged from the site at Preston New Road

 Looking Back at What Happened

During January this year, some of the fracking fluid Cuadrilla had been using had (as should be expected) been flowing back when the fracking pressure was stopped and the fractured rock formations try to settle back into their former positions, reversing the direction of flow back up the wellbore.

Amongst this, we were told, there were bursts of gas that were flared off.

We understand the plan might have been to let that intermittent flow of methane grow into a more stable return, so it could be properly flow-tested.

On 6 February, Cuadrilla's CEO Francis Egan said they had

"...confirmed that the Bowland shale formation fractures in a way that, from US experience, is typical of an excellent shale gas reservoir. A complex fracture network was generated in the shale and sand injected into the fractures has stayed in place during flow back.

Also the natural gas flowing to surface from the shale has a very high methane content, which means it could be delivered into the local gas grid for the benefit of local consumers with minimal processing required."

He went on to say that the 0.5 local magnitude earthquake limit had severely constrained the volume they could get out, and they had only been able to push less than 14 per cent of the sand they had planned to inject into the shale rock.

But they were pleased that gas still flowed back from the shale at a peak rate of over 200,000 standard cubic feet/day and a stable rate of some 100,000 standard cubic feet/day.

When that was published, it sparked interest in what's known as 'cold venting'

That's not exactly what most people might expect it to mean.

It doesn't just mean opening the valve and letting the gas flow into the air.

It turns out that flares which are not burning hot enough to achieve full combustion of the gas coming out of the ground, are also likely to be emitting unburnt methane and perhaps other volatile organic compounds, together with sulphur dioxide and other sulphur compounds (because they are not fully burned off).

So even if the gas can be seen in flames, if the necessary temperature is not reached, then not all the gas burns, and it seems this situation also comes within the term 'cold venting'

In what began as a separate matter, last November (2018) something known as a 'fugitive emission' (that's an escape to you and me) had been noted at the PNR Site, and the Useless Environment agency said

"This covers a site visit that we reported on in October, where a small amount of methane had been detected close to the site boundary. In reviewing the process management, we determined that the source was the use of tanks managing the fluid returned to the surface. Due to the low levels of methane recorded, we categorised this as a Category 4 (minor) breach of the environmental permit."

They went on to suggest this sort of thing happened all the time on industrial sites, so there was more or less nothing to worry about.

The tone of what was being said made us we wonder if any of those holding or promoting views like this were alive at the time of the Abbeystead Disaster in May 1984 where a methane gas explosion destroyed a waterworks' valve house in which a visiting party was touring the works. Eight people died instantly in the explosion and many - including a personal friend of ours - received horrific and life-changing injuries.

However, and more ominously - we thought - they felt it necessary to add.....

"The Environment Agency will be auditing the site in the new year to assess Cuadrilla’s leak detection and repair programme."

This admission sparked interest in methane as a concern at PNR.

This concern was exacerbated when, in February, Cuadrilla published some environmental monitoring data.

This said that methane levels above 7.1ppm have to be notified to the Environment Agency adding that methane readings above 7.1ppm were rare and the level is set purposefully low.

But they went on to say

"There have been four separate instances of elevated methane levels recorded from PNR since May 2018 when a continuous methane detector was installed. Periods of elevated readings equate to less than 0.3 per cent of the time. The EA has been notified each time in accordance with the protocol.

99.7 per cent of the time the methane levels in and around the site have been below the reporting threshold of 7.1ppm – this includes the periods of operational activity including hydraulic fracturing and flaring.

Three short term spikes of methane were recorded between 11 and 23 January, 2019. The highest spike was 30.5ppm which is less than half of the highest level recorded during the baseline period. This was a controlled release of methane through the flare during the well testing phase.

The methane was mixed with nitrogen gas for a short period to form a non-combustible mix in the on-site flare. The flare pilot light was ignited to try and combust the mixture and propane was also added for the same purpose, but the methane and nitrogen gas mixture could not be burnt.

The fourth instance of elevated methane emissions was in October when a reading of 12.1ppm was recorded for about 10 minutes. This related to methane gas in flow back water stored in tanks."

So it was discovered that not only had the publicised methane leak from the tank been a problem, but there had been instances of 'cold venting' where methane gas emerging from the wellbore had been vented to the atmosphere, and even mixing what people called 'patio gas' into it to try to ignite it had failed.

This prompted a series of questions from concerned local residents to the Useless Environment Agency.

We saw some of them. They raised issues regarding public health and climate impact (rather than the explosive risk where methane was contained within receptacles).

  • What other gasses (other than methane) you allowed the operator at PNR to vent unburnt into the atmosphere and over the people of the Fylde on the 1st November last year?
  • On how many other days has this been allowed?
  • How do you know that the temperature of the flare has been sufficient at all times to fully combust all the gasses?

The concern was prompted by health worries emanating from studies in the USA where (depending on concentrations, wind speed, wind direction, plume distribution and dispersion) they were found to pose a significant threat to the local population within a 3 mile radius.

If that was applied at Preston New Road, it would include Kirkham Grammar School, Wrea Green primary and Ribby Hall Village, and people in those buildings were in a risk zone whether they like it or not, and venting had already happened here.

Readers wanting more detailed information should follow this link to the Drill or Drop Website which has an in-depth article on this matter.

 What Happened Later....

However, subsequent to the row that blew up over venting at the start of the year, the Environment Agency did undertake an audit of Cuadrilla's flaring and gas management.

When the audit concluded, they issued a Compliance Assessment Report which compares what had actually happened with what Cuadrilla's  Environmental Management and Monitoring Plan says should have happened.

The Compliance Assessment report bears the date of 27/02/19 and carries an 'Issued date' of 28/03/19.

But the document's meta properties show it was created on 23/04/19.

We don't yet understand the differences in these dates.

A cynic might wonder whether it was first issued to Cuadrilla for comment, after which a final version might have been issued.

Readers can follow this link to download the full report which has three parts:

  1. a summary setting out where the EA believe non-compliance with the permit has occurred
  2. details and a description of the non-compliance
  3. the Enforcement Response (what has to be done)

There are three instances of non-compliance. The first of these concerns the flaring-off of methane.

 Flaring of Methane

Cuadrilla were not allowed to flare methane except where it was necessary for safety purposes, but examination of their flare register showed they had vented for reasons other than safety.

An estimated total of between 2.7 tonnes and 6.8 tonnes of methane was vented through the flare. (This is a gas we're talking about, not a solid). The venting took place for 35 minutes on 14 January and for 80 minutes on 20th January.

Of these events, the Environment Agency says

"On these occasions we recognised that this was not intentional. Waste gasses were diverted to the flare with the intention of being combusted. However, flaring was not possible due to the volume of nitrogen used over a sustained period creating insufficient combustible feed gas to the flare....

....The resulting emissions had minimal to no impact on the environment and did not represent a risk to people.

We have reviewed data recorded at air monitoring stations around the site for benzene, toluene, ethylbenzene and xylenes (BTEX) over the period of venting and there were no exceedances of the UK air quality objectives and no likelihood of health impacts."

The Environment Agency classed this non-compliance as being Category 3 on their scale of non-compliance because, they say it was 'associated with a minor impact on the environment.'

They then go on to say: 'We consider that the risk of incurring elevated levels of methane at the site boundary was reasonably foreseeable in these circumstances....

To be honest, we're struggling to reconcile something not being 'intentional' when the outcome was 'reasonably foreseeable'

If you've chosen to pump nitrogen in to push the flowback fluid out of the wellbore, it's a fair bet that you should also be expected to know that nitrogen is not flammable, and that means the methane - when mixed with the nitrogen -  isn't likely to hit the right temperature to fully combust, (and might not combust at all depending on the concentration).

So instead of flaring, you are emitting methane and nitrogen - and maybe other compounds - into the air.

Our take on this is that Cuadrilla ought to have known that cold venting would arise, and to our mind, that makes it an intentional act on their part. But that doesn't seem to be a view the Environment Agency share.

 Use of Supplementary Fuel

The second matter of non-compliance concerns the use of supplementary fuel to start or improve combustion.

Cuadrilla's permit to flare requires

'....that ‘where sustained periods, but inadequate quantities of combustible well returns are encountered, the flares will be supported with supplemental fuel after five minutes’.

But the EA compliance report says '....the operator chose not to add the support fuel (propane) as this may have resulted in increased emission, there being a high probability that propane could also have been released unburnt....'

We were struggling to come to terms with this statement and the information that Cuadrilla themselves had published on this matter saying

'The methane was mixed with nitrogen gas for a short period to form a non-combustible mix in the on-site flare. The flare pilot light was ignited to try and combust the mixture and propane was also added for the same purpose, but the methane and nitrogen gas mixture could not be burnt.'

The one from the Environment Agency says Cuadrilla chose not to add the propane because it might also be emitted unburnt from the flare stack, and the other from Cuadrilla themselves said they did add the propane but it didn't work.

It might, however, be explained in the part of the Compliance Report where the Environment Agency says:

'Typical methane concentrations were less than 40% due to the nitrogen added for uplift.

Tests were carried out by the operator on the minimum methane concentration within the gas that would burn.

When methane concentrations were less than 40% the flare temperature did not increase (i.e. there was no combustion).

The operator holds support fuel (propane) on site, however, did not use it as a supplemental fuel after five minutes when there were inadequate quantities of combustible well returns.

During the audit the operator demonstrated through calculations that significant quantities of support fuel (propane) would have been needed in order for it to combust.

There was an occasion when the methane concentration was 30% and a quantity of support fuel was added for 3 minutes but it did not combust as the quantity of support fuel was too low.

We have carried out our own calculations and verified that significant quantities of propane would be required.

So - we wonder - if it could have been fixed by adding 'significant' quantities of propane, was it a matter of cost that it was not used, or was it that the volume of propane needed could not have been provided?

 Frequency of Methane Monitoring

The third breach was that Cuadrilla should have undertaken continuous methane concentration monitoring in flare feed gas, but it was only monitored at 30 minute intervals instead of the 10 minute intervals prescribed in the permit. here again the Environment Agency sees no cause for concern, saying

'We consider that there was no impact on human health, quality of life or the environment from this non-compliance....

 Outcome

So as a result of all this, the Environment Agency's response was to issue Cuadrilla a warning:

'In respect of the above non-compliance you have been issued with a warning. At present we do not intend to take further enforcement action. This does not preclude us from taking additional enforcement action if further relevant information comes to light or offences continue.'

We understand they have also said that Cuadrilla should consider applying for variations to their Environmental Management and Monitoring Plan if they don't want to be found wanting again (at least in respect of the flaring of methane), saying:

'Any change to this activity would require a variation to bring operations in line with the permit. This would in turn require an impact assessment and or management plan outlining an assessment of appropriate measures which could be used to mitigate potential pollution.

Note the term 'mitigate potential pollution.' It is nowhere near the same as stopping it from happening -  it just means they would have to make it less bad.

We regard this sort of use of the Environment Agency's 'Environmental Permitting Regulations'  in the same way as we regard the granting of 'Indulgences' in the middle ages. It pre-authorises pollution so long as it is not as bad as it could otherwise have been, and we invite our readers to use their own judgement as to whether our nomenclature of the 'Useless Environment Agency' is a fair epithet or not.

 SUCCESSFUL APPEAL ON INJUNCTION TERMS

Anti-fracking campaigners scored a small but important success when three senior judges sitting as the Court of Appeal ruled that some sections of a July 2017 injunction granted by a High Court Judge in favour of Ineos, which prohibited 'persons unknown' from trespassing on, or obstructing access to, eight sites operating under the Ineos umbrella.

In addition, the injunction had prevented people working together 'with the intention of damaging Ineos or any other companies in its supply chain.'

Cuadrilla and other companies have also used similar injunctions to curtail or limit the scope for protest.

These injunctions came about after protestors were successfully making their case by, for example, 'slow-walking' (which involves walking slowly on the public highway in front of delivery lorries for example). This very significantly limits the speed of vehicles as they arrive at sites.

There were also instances of protestors climbing onto vehicles which then stopped - presumably for fear of causing injury to the unofficial 'passenger'

Such protests also spread to suppliers of the company - as we saw at Preston New Road - where some suppliers judged the overall benefit of working for Cuadrilla was not worth the loss of public support they sustained for doing so, and they withdrew from working for Cuadrilla.

The injunctions caused restrictions in what protests could lawfully be undertaken, and saw the police using (some might say mis-using) powers under Trade Union legislation to charge protestors with, in effect, preventing workmen from working.

During the challenge to the injunction, the Court of Appeal was told that the High Court Judge who had originally granted the injunction had failed to distinguish between lawful freedom of expression and assembly (which was protected under the Human Rights Act), and unlawful activities.

Whilst the injunction's provisions that prohibit ‘persons unknown trespassing on INEOS’ land and interfering with private rights of way’ currently remain in place (and are thus still prohibited), the Court of Appeal judgement also required Ineos to return to court so that these elements can be tested against the Human Rights Act to see if they should still stand or be changed.

However, on other aspects of the injunction, and especially after considering the injunction in terms of the Human Rights Act,  the Court of Appeal did order some pretty extensive changes to the Ineos injunction, including the complete removal of two key elements vis...

  • ‘persons unknown unlawfully causing loss to INEOS by combining together and protesting against INEOS’ suppliers’, and
  • ‘persons unknown protesting on the public highway, using tactics such as slow walking’.

The ruling held that the original injunction was too wide and insufficiently clear, adding that

'The concept of slowwalking in front of vehicles or, more generally, obstructing the highway may not result in any damage to the claimants at all'; and

'A person faced with such an injunction may well be chilled into not obstructing the highway at all.” and

'The citizen’s right of protest is not to be diminished by advance fear of committal except in the clearest of cases.'

We think this judgement will have implications for companies who currently have the benefit of similar injunctions, and will not only affect Ineos.

 WELLBORE MALFUNCTION

Our friends at Drill or Drop recently broke news of significant failures at Cuadrilla's Preston New Road site.

Under their headline 'Confidential records reveal limitations of Cuadrilla’s Lancashire fracking operation' they explained that daily logs were sent by Cuadrilla to regulators provide information about operations, induced seismicity, frack fluid volumes, proppant and fracture lengths.

These logs were marked 'confidential' and were not published on the company’s website.

However, in its undated (and intentionally unattributed) guidance document 'Seismic communication protocol guidance' (currently available from this link to its website), the UK Onshore Oil and Gas authority (UKOOG) says these daily logs should be published on Cuadrilla's website i.e.

"Daily Report

A daily report should be submitted via email to BEIS, OGA, HSE, EA during hydraulic fracturing activity. This should include:

• A summary frac treatment report that includes; the volumes of proppant and fluid pumped, chemical volumes used, summary of injection pressures and depths.

• A schematic showing frac growth/extent in relation to the permitted boundary (EA permit).

• Any induced seismicity detected within the Yellow or Red zones of the traffic light system and/or Surface Vibration detected that exceeds the vibration threshold VT1 or VT2. Where no seismicity has been reported, an estimate of the detection threshold.

• Summary text on well integrity

This daily report should be made available on the Operator’s website."

But Cuadrilla did not publish the logs, nor did they reveal all the contents to local residents and councillors.

They also sought to prevent their Regulators from releasing the information under Freedom of Information Act.

In November 2018 Cuadrilla wrote to the Environment Agency saying:

"We believe that all of the data contained in our daily reports is commercially confidential .......

.......Please would you confirm that the Environment Agency will not be releasing any of these reports to the public without our consent. "

Thankfully the UK's Freedom of Information laws include an Information Commissioner to whom the public can appeal if a public body refused to provide information.

This sort of backup power available to the public means that even the Useless Environment Agency decided it would have to provide the information it held in the daily logs when it was requested to do so.

Cue an avalanche of information which our friends at Drill or Drop have analysed.

This process revealed a great deal about what has been going on since November, including:

  • Cuadrilla carried out just 15 main fracks between mid-October and mid-December 2018
  • Just 36% of the planned stages of the well had a main frack
  • Whole sections of the well were not fracked at all
  • On two-thirds of the fracking days there was at least one seismic event
  • Fracking used a fraction of the expected volume of fluid and proppant
  • Fracking paused for more than a month
  • Fracking equipment suffered a mechanical failure
  • The well had to be cemented and milled to solve the problem
  • Equipment became stuck in the well and was abandoned

We knew (or we surmised) the first six of these issues in our earlier articles, but the last three were new to us and we have to commend Drill or Drop's work to analyse the matter.

Having reviewed the Drill or Drop analysis, Prof Smythe included a comment in his own paper, and we can find no better way of explaining what has been found, than to re-quote him on this matter. He begins by saying

"The incompetence, to which Cuadrilla has never admitted publicly, explains why the company suddenly went quiet in November."

He's referring to the winter period where Cuadrilla seemed to have stopped fracking and demobilised and removed from site much of their equipment. We reported this on 4th January 2019 in our article 'PNR: What's Going On?'

Prof Smythe continued....

"Cuadrilla began fracking on 15 October 2018 with a minifrack of stage 1, furthest from the wellpad.

Fracking proceeded eastwards to stage 40, but with many gaps, until 2 November.

A problem then arose the following day, when sleeves 30 and 31 could not be closed.

The coiled tubing was withdrawn and the well was cleaned, ready for a cement job to seal off the two open stages.

Eventually by 17 November the two stages were cemented; then the bore had to be milled out through to stage 1 at the far end.

All this sounds bad enough - but then Cuadrilla dropped off some components of the working string in the well: the milling tool, a crossover unit, and part of a motor drive assembly.

So a ‘bullnose’ bottom hole assembly was then fitted to the end of the coiled tubing, and the orphaned gear was pushed by the round end of the bullnose past stage 1 to the end of the wellbore, there to remain for all eternity.

This takes us to 27 November. The well then had to be cleaned, with the help of nitrogen lift [Link to explanation of 'nitrogen lift']"

Prof Smythe goes on to argue that Cuadrilla’s press release during the month of problems is highly misleading. He says there is no mention of the cement job to seal off the open sleeves, which had been ongoing for three weeks, and at the time of the press release the now-hardened cement was being milled out.

So what we have here is some equipment pushed along the wellbore to grind or mill the cement that seems to have been used to seal off openings 30 and 31 used for fracking, but the milling equipment became detached.

Cuadrilla seems to have tried more than once, but they couldn't retrieve it, so they pushed it as far as they could to the end of the wellbore and have abandoned it there.

This has faint echoes of the problems that caused the Preese Hall site to be abandoned. There, the 'final' earthquake damaged and deformed the wellbore itself and it could no longer be used.

This time it's not clear whether any of the earthquakes affected the wellbore or the sleeves (making them unclosable), or whether the problem was due to some other cause.

Perhaps understandably (when things are going so badly for them), Cuadrilla don't seem to want to comment.

Readers can follow this link to see the technical paper Prof Smythe has published as a webpage, or you can follow this link to download a pdf file of it

Prof Smythe's website also allows comments, and when we looked, one caught our eye from local campaigner and community representative Miranda Cox who said:

"I sit on the Community Liaison Group for PNR. They informed us at the last CLG that the HFP [Hydraulic Fracturing Plan] for PNR 2 [The second well at Preston New Road] has been withdrawn and is expected to be resubmitted after some new data has been analysed. This also coincides with the application to vary the environmental permit."

So all told, we think it might be a while before anything much happens at Preston New Road.

 THE BEGINNING OF THE END?

What has been elicited from the Freedom of Information request probably explains the further removal of equipment from Cuadrilla's Preston New Road Site and the lack of any significant activity so far this year.

And with the delays that are now ensuing, it looks increasingly likely that Cuadrilla will have to apply for a new planning permission to continue to frack - because their present permission is believed to run out later this year.

Back in December 2018 - when equipment starts to be removed from the site - we wondered whether we might have seen the end of fracking at Preston New Road.

Since then public attitudes can be seen to have hardened further against the extraction and against the use of fossil fuels. Environmental protest is growing.

As evidence of this, we need look no further than the Government's own Energy and Climate Change Public Attitudes Tracker: Wave 29 which shows:

  • the percentage of people neither supporting nor opposing has remained fairly constant at around 45%; but
  • opposition to fracking has increased to 40%, from 35%; and
  • support diminished to just 12% down from 13%.

(Support for fracking has declined since polling on shale gas began with Wave 8 in December 2013 (27% now down to 12%)).

In another instance, this month saw the national Fire Brigade Union's (FBU) Conference endorse a motion from their Shropshire branch which said:

'Conference notes the reports of an increase in earthquake activity in Lancashire since Cuadrilla was granted a licence to frack for gas. Conference is also concerned that the granting of those licenses by central government appears to have overturned local democracy.

Following the UN's IPCC (Intergovernmental Panel on Climate Change) report last October, Conference believes that climate change and its affects on our lives, and those of future generations is now of the highest importance. As such, Conference believes that FBU Policy should be to support renewable energy sources in preference to burning more carbon fuels.

Therefore Conference instructs the FBU to oppose fracking in the UK and instructs the Executive Council to support campaigns against fracking.'

We're not trying to say that either of these is a silver bullet that will end fracking, but they do show a hardening of public attitudes against it, and a Government so preoccupied with Brexit that it is losing the battle for hearts and minds on fracking.

For us, all of this adds up to a perception that we might be at the beginning of the endgame for fracking, and if the 'traffic light' safety system for pausing fracking after an 0.5 magnitude earthquake remains in place - as seems likely at the moment - then we think fracking in the UK will be joining the Dodo.

Dated:  24 May 2019


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