Independent Review of Underground Coal Gasification - Report

5. Regulation and Land Use Planning

5.0 This chapter has been prepared following consideration of the literature, materials from and interviews with Scottish Government, SEPA, SNH, HSE, BGS, the Coal Authority, DECC (now DBEIS), Marine Scotland, CoSLA, Falkirk Council, CNRL and a number of commentators.

5.1 The planning and regulatory frameworks for UCG are not explicitly set out but need to be assembled from several components. Planning and regulation facets relate to the preparation for operations, geophysical and environmental testing, drilling and construction phases of UCG as well as operations and closure.

5.2 These relate in detail to access, transport, drilling, licensing of coal related activity, activities impacting the aquatic environment - surface and ground waters, and potential and process releases to the atmosphere, controlled waters and the terrestrial environment including soils, landfill and disposal at sea, the generation and storage of wastes, the storage and transport of hazardous materials, including flammable gases, regulations on radioactive materials including naturally occurring radioactivity, control of major accident hazards, pipelines regulations, planning and development control arrangements relating to operating hours, noise, odour, nuisance and so on. It is complex. Arguably no more so than for other chemicals or oil and gas sector activities but UCG as contemplated in the FoF, for example brings these issues into the overlapping zone of onshore and offshore, closer to populations and connecting with other infrastructure, activities and their services.

5.3 Legislative framing for treatment of UCG is relatively poorly covered in the literature and general planning, mining, oil and gas (petroleum) and environment protection legislation applies in various jurisdictions. Experience in Australia is covered later in the report but the Unconventional roadmap process in South Australia as well as the principles of the trialling model in Queensland are instructive. Kalkbrenner (2014) describes the Canadian context in Alberta but, understandably, she focuses on the legislative components themselves without connection to practical implementation in any detail. Goldstein et al's work in SA DMITRE (2012) is most likely to allow consideration of good practice and the issues arising.

5.4 DECC set out onshore oil and gas exploration regulation arrangements in DECC (2013) and although the fit with Coal regulation is not always clear, this helps map the edges between the domains.

5.5 SEPA provided a great deal of material on their roles in relation to UCG and CoSLA provide a local authority perspective in their interview and the submissions they made, based on learning from the experience of the Dart Public Inquiry and dealing with a UGE application. Some of SEPA's materials were provided on the basis of my private use and not for publication and local authority inputs were in part caveated based on the sisting of the public inquiry. All of this, and other information would ideally offer a lot of scope for learning of direct relevance to an appropriate regulatory and planning model.

5.6 SEPA (2012) sets out the principal areas of relevance to UCG for regulation by SEPA, although the document is explicitly addressing shale gas and coal bed methane. These, largely driven by the suite of relevant EU Directives in the environmental acquis, are:

• "The Water Environment (Controlled Activities) (Scotland) Regulations 2011 ( CAR)
• Pollution Prevention and Control ( PPC)
• The Control of Major Accident Hazards Regulations 1999 ( CoMAH)
• Inputs to Planning
• The Environmental Impact Assessment Directive ( EIA)
• Environmental Liability (Scotland) Regulations 2009 ( ELR)
• The Management of Extractive Waste (Scotland) Regulations 2010
• Waste Management Licensing Regulations
• NORM Radioactive Substances"

[See references at end of chapter for fuller details and links]

To this list would now likely be added at least the provisions of the Industrial Emissions Directive ( IED), implemented later in 2012 in the Pollution Prevention and Control (Scotland) Regulations 2012, the revised CoMAH regulations (partially implementing the Seveso III Directive) and the emerging suite of reference documents emerging from hydrocarbon and gas storage Directives and consideration of their fit with the rest of the acquis.

5.7 All of the above appear likely to apply to UCG operations, and in addition, duties connected to gas accounting, including EU-ETS or similar future arrangements might also be in scope. SEPA has assessed preliminarily the potential environmental hazards associated with UCG and also the issues operationally that might increase risk. Possibly most relevant at this stage is the "lack of evidence of environmental impacts from similar situations", both generally, globally and in the FoF context, which confirms my findings, and their view that there is a "lack of clarity about the degree of regulatory control over the UCG regulatory framework". Whilst, I understand, dialogue is ongoing between SEPA, HSE, CA and SG, "because these controls and regulations are still being clarified, it is not possible at this stage to assess the level of protection they provide."

5.8 Scottish Ministers directed SEPA in October 2015, based on the provisions and scope of the Water Environment (Controlled Activities) (Scotland) Regulations 2011, to refer to them, for determination, any application to carry on any controlled activity in relation to UCG. While cores sampling was excluded, any gasification activity fell under the direction. SG (2015)

5.9 Discussion with SNH indicated their view is of UCG being a "relatively untested technology' with a controversial track record. They indicated that proposals would be assessed on their merits and some early discussions with developers had taken place. Reliance would be placed on advice from SEPA, local authorities and Marine Scotland and their interests would substantially relate to protected sites, in the case of the FoF, that SPA. Pathways to impact were noted as being unclear and the priority would be the direct components of obtaining sufficient information to allow an adequate Habitats Regulations Assessment to be concluded. The only issue identified as lying outside the normal regulatory standard was subsidence. The precautionary nature of the Habitats Regulations was also noted. Finally, the observation was made that simplification and clarification of the regulatory framework and effective integration of effort would be welcome.

5.10 Marine Scotland indicated the role of the National Marine Plan and their general policies in framing licences. Currently there is no specific additional guidance for onshore oil and gas activity or UCG specifically. Scotland is divided into 11 regions and the Tay and Forth estuaries are grouped together. There is not currently a Marine Partnership for this area. Generally the view provided was that this was an early stage in the development of arrangements and much remained to be firmed up. Similarly it was agreed that monitoring and reporting issues would need to be tackled in due course.

5.11 HSE set out that, other than the general provisions of the Health and Safety at Work legislation and areas of common interest with SEPA around CoMAH etc, specific terms relate to boreholes and wells. Aspects of these are currently under consideration for amendment, partly to address the possible needs of the UGE industries. UCG is not specifically included at this point but would likely be considered in scope. The specific legislation is the "Borehole sites and operations regulations, 1995 ( BSOR)" and "The Offshore Installations and Wells (Design and Construction, etc.) Regulations 1996". There was again a broad agreement that mapping of the components and fit of relevant regulations between the relevant regulators would be desirable.

5.12 Discussion with the EU Commission clarified the view taken that for unconventional gas generally and shale gas/ HF specifically the Commission staff believe that exploration is covered by the range of existing EU and national provisions with no significant gaps. See ( http://www.europeunconventionalgas.org/environment-and-communities/eu-regulation). BREFs (Best Available Technology/Techniques Reference Documents) are being developed from the 1994 Hydrocarbons Directive to incorporate further UGE aspects. This will be ready during 2018 on current plans.

5.13 The 2014 EU Commission communication on hydrocarbon exploration and production set the scene for much work that is still ongoing, ( http://eur-lex.europa.eu/resource.html?uri=cellar:a46647dd-843b-11e3-9b7d-01aa75ed71a1.0001.01/DOC_1&format=PDF) but it is clear that UCG, addressed initially in the 1985 Directive (85/3337/ EEC), is not currently a focus of policy attention. Also, research work under Horizon 2020 and the 7 ^th Technology Framework has been taken up largely only in Poland at present and has a hydrogen focus, based on the work at the Barbara mine. (See Annex 3).

5.14 An engineering BREF is also being considered for Waste Management Plans associated with UGE and this would also relate to another process to provide further consideration of the Water Framework Directive and how its requirements might better be addressed in the UGE context. EuroGeoSurveys also observed that as we currently do not have a comprehensive map of UCG, or UGE generally, or agreed terms for definition, or a comprehensive assessment of existing projects or research activity, there is a great deal of work to do, especially if the industry is to progress to allow appropriate policy shaping and information sharing. One of the most relevant recent pieces of work stems from EC (2014), a study of deep underground coal gasification, and this is a major strand of policy work that was a key component of the CCS plans being progressed and considered for funding by the Commission. Current status is less clear.

5.15 Convening a collegiate model process as advocated by RRG from 2006 ( http://www.gov.scot/Topics/Business-Industry/support/better-regulation/regulatory-review-group/membership) for tackling new and complex regulatory challenges and doing so in an informed and forgiving environment, involving developers at least in part in the process, would be desirable and help regulators and policy makers greatly in scoping, identifying and ironing out issues for the future and shaping a good, viable model. Use of experts, scenarios and appropriate trialling is essential for such new or challenging issues. The Vannan and Gemmell (2012) model is also relevant as is the approach proposed in Gemmell et al (2016).

5.16 BGS, Jones et al (2004) gave a simple summary of environmental issues for UCG as follows,

"There are some significant environmental issues of the UCG process, including the potential for subsidence, atmospheric emissions, the possible interactions of the UCG cavities with aquifers and the potential for pollutants to migrate away from the cavity (Creedy et al. 2001). Careful site selection and process control are required to control the dispersal of gas and liquid by-products from the gasification cavity, and the configuration must be designed and assessed to minimise ground subsidence. Abatement equipment at surface is used to maintain air emissions (acid gases, particulates and heavy metals) within the Regulatory requirements."

5.17 The Royal Society of Edinburgh made a number of interesting observations too, on the context for regulation of unconventional gas and generally:

"If Scotland decides to source more gas domestically, it would have greater control over the introduction of environmental control measures, such as carbon capture and storage, although such action could see gas prices rise."

And

"Onshore production of unconventional gas would allow Scotland control over all regulation surrounding extraction and production. The impact of unconventional gas production on the environment is considered to be comparable to conventional gas. The areas of health, wellbeing and safety surrounding an onshore industry do not appear to present significant risks, although a degree of uncertainty is present."

And,

"Public opinion relating to onshore unconventional gas development, particularly surrounding safety, in Scotland is often negative and this could make developing an industry difficult."

5.18 A number of assumptions and policy points are embedded here. All seem valid. SEPA's duties are a part of this but it appears likely that HSE, Marine Scotland and the local authority as well as SG itself would have an interest in these elements and in the fit between them. BGS and CA would be sources for aspects of the necessary information but also, in CA's case, a key player requiring reassurance and demonstration by an applicant that they had been considered adequately and that initial licence terms were being complied with.

5.19 Approach to Licensing

Questions arise, given observations from various regulators and operators as to the coherence, order, fit and primacy of regulator and licensing activity. It is not clear the extent to which this has been considered and agreed by the parties involved. As indicated earlier when considering the Coal Authority's initial licensing powers and advice, the CA requires conditional licence holders to discuss issues with DECC (now DBEIS) as well as The Crown Estate (a likely marginal role especially once former constitutional aspects are fully addressed and key responsibilities formally pass to local government), MoD and other "relevant bodies", clarified in interview as including, in Scotland, SEPA, BGS, Marine Scotland, HSE and Scottish Government itself as well as relevant local authorities, prior to issuing a full licence. There would then be the specific requirements of these bodies to address as to the particular permissions they provide. We have not reached the point for UCG where these become "live".

5.20 That brings, however, ten bodies into play in a specific case. In all probability, subject to the details of the applicant developer's plans, SNH, for habitats and birds directive purposes and other issues relating to protected sites would also be involved but that would more likely relate to planning and then monitoring phases rather than licensing and operation. If a new water supply issue or significant demand were involved, Scottish Water might be consulted too.

5.21 As to specifically regulatory entities, five bodies plus the local council would be expected routinely to be involved. This complexity was considered by Andrew Nunn of Cluff Natural Resources to be multiple and an issue but manageable, realising that the various components were necessary and the company could deal with it. They did however, as did all of the regulators variously suggest that there was room for simplification and integration to ensure a good fit between the components as well as improved communication between the organisations and regulators involved.

5.22 Planning

Scottish Government, in addition to the SEPA UCG Direction above, issued Directions to planning authorities ( unconventional oil and gas and UCG) similarly ensuring a call-in approach. The requirement, in addition to timing detail, to ensure receipt of environment report/statement, assessments concerning conservation, habitats etc., planning documentation concerning transport and noise etc., whilst largely standard, "ensure(s) the Government's position on UCG is reflected through the planning decision making process.

5.23 The basic elements of the planning system that relate to UCG arise from The National Planning Framework ( SG, 2014) and potentially the strategic framework for critical national infrastructure. If new, nationally important infrastructure is needed (which is subject to planning controls) then the National Planning Framework has been used in the past to designate certain developments as "national developments". Section 6 and Annex A of the NPF provides more information. There is a description on P72 of a CCS development which appears reasonably similar to what would happen for UCG. Any "national development" would need to have full Government backing and its delivery needed in the national interest. http://www.gov.scot/Resource/Doc/346469/0115308.pdf The first few pages of this document provides an explanation to how SG goes about designating national developments: http://www.gov.scot/Resource/0042/00420881.pdf

5.24 CoSLA's submissions to this review process, attached at Annex 2, I-7, substantially advised and influenced by the Heads of Planning and Falkirk Council's experience of the Dart Public Inquiry ( PI), reflect the range of concerns arising from practical experience of the related but different processes involved in considering application for and early operations relating to a Coal Bed Methane project. The Dart PI process has not completed and therefore it is not yet possible to learn all of the lessons of this experience and consider how these might shape UCG policy and licensing. Nonetheless, there are some clear pointers to the likely issues to be considered.

5.25 Issues are raised around the level of resources, the availability of mineral and energy expertise, the skill and time taken to support an applicant and input to inquiry processes and so on. For a small local authority or even a large one, and potentially for SG itself, there are major considerations around costs, capacity and capability in this area. A dedicated approach to centralised or co-ordinated expertise is certainly suggested.

5.26 Vannan and Gemmell (2012) considered the fitness of the existing environment protection regulatory regime to apply to CCS and aspects of that work could inform the treatment of UCG but also suggest a potential model. Especially in the context of points made by Coal Authority, Marine Scotland, SNH, HSE and SEPA, about resource levels, skills and system coherence, a robust model based upon full cost recovery and effective marshalling of available resources is suggested and would beneficially be developed and trialled. Mapping of what is needed and who is best placed to do what and then how and in what order this fits, is shared, executed and then serves to monitor and share progress is well worth considering. Industry concerns about the scale of the burden of regulation can also be handled better by taking a suitably engaged and rounded approach of this kind. (Gemmell and Scott, 2013)

5.27 Whilst potentially unclear or limited to application in England, the role of the Infrastructure Act 2015 and its potential parallels and application in Scotland, may be significant, or at least worthy of consideration, not least in relation to both the pipeline needs and syngas facility but also in relation to air monitoring. Aspects of the Act refer to UGE and HF activities but not UCG and it is not clear how the Act would affect planning and operational conditions, prior to and during the lifetime of a licence for UCG.

5.28 Following interviews with various experts, particularly including the Coal Authority ( CA), HSE, SEPA and energy industry economists as well as reading the available Queensland and related literature, I have strong concerns about liabilities. Most industrial operators and the projects pursued and reported to date have not reached the end of the life-cycle, even if they have stopped. Impacts are only partially understood. Monitoring has often been inadequate and there is an easy inference that there has been an approach of "if we don't look, we won't find".

5.29 Discussions with industry consultants suggests a widespread view that the coal industry, both deep and surface, as well as a number of resource industries globally have not always viewed environmental and community factors as priorities. Similarly, hazards, including interconnecting ones of health and health and safety, have had inadequate provision or have been left to be addressed only when they became a priority, often therefore when impacts had crystallised. Lessons in some cases have been learned. But the establishment of action plans, monitoring programmes, credible bonds and insurances to ensure available resources for remedial action as well as actual planning for reinstatement and detection of issues of concern, for example, is often seemingly left late or best intentions, and even written plans, are trumped by other factors. These would include economic realities, market conditions, encountering unexpected geologic conditions, sudden groundwater condition changes or accidents and so on.

5.30 Especially for a developing or immature industry, I fully accept that making provisions for liabilities is a challenge. When exploration and production are very expensive, infrastructure needs lie on top of this and may be even larger, making full provision for costs, events and remedy that is at least to some extent unknown at the early stages is very difficult. Nonetheless this lies at the heart of understanding the context and the appetite for risk, especially the acceptance of known hazards and real mitigations. Costs of remediation of contaminated ground and groundwaters may cost many times the actual project costs and could and can take decades. The CA and the Queensland state administration appear to accept that some bonds and commitments, for example, have not been (possible to be?) well policed and some operators, as several regulators have said, have not been held robustly to account for failings. These failings and their impacts affected the broad community and environment, sometimes in ways not initially seen or understood. And when needed, funds were not available, nor were data, and the public bodies and purse were left to pick up the bill. This would not appear to be wise to allow to be repeated. This in turn places even greater focus on strong and simple regulation as well as on very good ex ante assessments and robust licences, with very strong oversight during and following any project.

5.31 Summary

Several players are involved in the regulatory space and arguably too many. Individual elements are dedicated to specific understandable purposes. To be effective and certainly to be efficient, they would benefit from detailed role, needs and task mapping, consideration of simplification and testing of how they would operate best and most effectively for the operator/applicant and for the public purse as well as in order to ensure delivery of the individual and joint policy objectives. The systems involved do not appear at this point to offer a fit-for-purpose, best practice or even tried and tested overall approach. It is recommended that there be a clarification of roles, fit and ultimately primacy in setting requirements, making decisions and taking responsibility overall for client management and the overall judgements required.

References

Coal Authority (2009) Underground Coal Gasification. Policy Statement for Licensing by the Coal Authority
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/361590/Underground_Coal_Gasification_Policy_-_model_document.pdf

Creedy DP, Garner, K, Holloway, S, Jones, N and Ren, TX (2001) Review of underground coal gasification technological advancements. Report No. COAL R211 DTI/Pub URN 01/1041.

DECC (2013) Guidance Regulatory Roadmap: Onshore oil and gas exploration in the UK regulation and best practice.
https://www.gov.uk/government/publications/regulatory-roadmap-onshore-oil-and-gas-exploration-in-the-uk-regulation-and-best-practice
See also https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/265984/Onshore_UK_oil_and_gas_exploration_Scotland_Dec13_contents.pdf

EC (2014) Study of Deep Underground Coal Gasification and the permanent storage of CO ₂ in the affected areas ( UCG and CO ₂ Storage). DG Research and Innovation, Dir D. Research Fund for Coal and Steel. Hristov, N et al. (20 authors). EUR 26420.

Gemmell, C., Bingham, S. and Isarin, N. (2016) Collaboration and consultancy, tackling environmental crime and delivering environment protection 119-138 in Pink and White, Eds Environmental Crime and Collaborative State Intervention. Palgrave.

Gemmell, J.C. and Scott, E.M. (2013) Environmental regulation, sustainability and risk . Sustainability AMP Journal v4, no. 2. 120-144

Hawkins J. (2015) Fracking: mind the gaps. Environ Law Rev; 17: 8-21.

HMSO (2015) Infrastructure Act (See Scts 43-50)
http://www.legislation.gov.uk/ukpga/2015/7/section/50/enacted

Kalkbrenner A. (2014) Underground Coal Gasification: A Regulatory Framework for Alberta. Alberta Law Review, Mar2014, 51, (3), p525-554, 30p

Konschnik KE and Boling MK. Shale gas development: a smart regulation frame-work. Environ Sci Technol 2014; 48: 8404-8416.

SA DMITRE) (2012) RoadMap for Unconventional Gas Projects in South Australia. Energy Resources Division (Goldstein, B et al)
http://www.statedevelopment.sa.gov.au/upload/mineral-and-energy-resources/Roadmap_Unconventional_Gas_Projects_SA_12-12-12.pdf

SEPA (2012) Regulatory Guidance: Coal bed methane and shale gas
https://www.sepa.org.uk/media/139706/unconventional_gas_guidance.pdf
http://www.sepa.org.uk/customer_information/energy_industry.aspx

• The Water Environment (Controlled Activities) (Scotland) Regulations 2011 ( CAR)
  http://www.legislation.gov.uk/ssi/2011/209/contents/made
• Pollution Prevention and Control ( PPC)
  http://www.legislation.gov.uk/ssi/2000/323/contents/made

Now the Pollution Prevention & Control (Scotland) Regulations 2012 ( PPC)
http://www.legislation.gov.uk/ssi/2012/360/contents/made

• The Control of Major Accident Hazards Regulations 1999 ( CoMAH)
  http://www.legislation.gov.uk/uksi/1999/743/contents/made

Now the Control of Major Accident Hazards Regulations 2015 ( CoMAH)
http://www.legislation.gov.uk/uksi/2015/483/contents/made

• Inputs to Planning - as statutory consultee for developments and in relation to flood risk assessments etc
• The Environmental Impact Assessment Directive ( EIA)
  http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:026:0001:0021:EN:PDF
• Environmental Liability (Scotland) Regulations 2009 ( ELR)
  http://www.legislation.gov.uk/ssi/2009/266/contents/made
• The Management of Extractive Waste (Scotland) Regulations 2010
  http://www.legislation.gov.uk/ssi/2010/60/contents/made
• Waste Management Licensing Regulations
  http://www.legislation.gov.uk/ssi/2011/228/contents/made
• NORM Radioactive Substances
  http://www.sepa.org.uk/regulations/radioactive-substances/regulation-and-legislation/naturally-occurring-radioactive-materials-norm-strategy/

SG (2014) Ambition. Opportunity. Place. Scotland's Third National Planning Framework
http://www.gov.scot/Resource/0045/00453683.pdf

SG (2015) Direction to SEPA on UCG
http://www.gov.scot/Resource/0048/00487164.pdf

SG (2015b) Direction to Heads of Planning
http://www.gov.scot/Resource/0048/00487142.pdf

SG (2016) Statutory guidance on the general purpose of the Scottish environment protection agency and its contribution towards sustainable development. Edinburgh: Scottish Government,
http://www.gov.scot/Publications/2015/03/8062/1(2015)

Task Force on Shale Gas (2015) First interim report: planning, regulation & local engagement. London: Task Force on Shale Gas,
https://www.taskforceonshalegas.uk/reports

Vannan, C and Gemmell, C (2012) The role of regulators in reducing regulatory risk: using scenario planning to assess the regulatory framework for carbon capture and storage. Risk Management, v 14, 27-41