Shale gas exploration in the UK continues to move forward, often in the face of determined opposition. This adds another challenge to those operating in this area.
Events over the summer at Balcombe in West Sussex revealed the strength of feeling generated by onshore hydrocarbon exploration. Well organised protests have also taken place at other sites across the country. It is critical that operators plan their activities carefully, not only in relation to drilling, but also in relation to others in the vicinity of the site.
Operators will be aware of the requirements of the Borehole Site and Operations Regulations 1995 (which primarily govern site health and safety), the Offshore Installations and Wells (Design and Construction etc) Regulations 1996 (which include onshore shale gas wells and which govern well integrity) and the Reporting of Injury Disease and Dangerous Occurrences Regulations 2013 (which include a list of dangerous occurrences specific to wells).
Drilling is a hazardous activity and is therefore heavily scrutinised by specialist wells inspectors from the Health and Safety Executive (HSE). Well design is assessed in advance and operations are then closely monitored by way of weekly reports. Site inspections are also carried out during operations. The legislation is unusually prescriptive in setting out in detail what is required on site.
Duties to others
The HSE is also tasked with regulating the operator's duty to ensure public safety within and in the direct vicinity of the site. The legal basis of this duty is set out in section 3(1) of the Health and Safety at Work etc Act 1974 (HSWA), which states that an employer must ensure, so far as is reasonably practicable, the health, safety and welfare of non-employees affected by their undertaking.
Visitors to site, neighbours, passers-by and protestors all fall into this category. The section has been widely analysed and recently, has been held to describe a result which an employer is expected to achieve - the safety of non-employees affected by what they do. "Risk" means "the possibility of danger". There is no need, therefore, for an accident to take place for an employer to breach this section. The mere existence of the possibility of an injury is enough.
Breach of the HSWA is a criminal offence and carries the sanction of an unlimited fine. Although an employer may defend itself by proving on the balance of probability that they took all steps reasonably practicable, in reality, this is often very difficult in the aftermath of an accident.
The courts have also recently held that the risks to which sec 3 applies must be material and real, although they might not be obvious. There is no need to guard against risks which are trivial or fanciful, although a Court of Appeal decision in R v Willmott Dixon Construction Ltd suggested that the point at which a risk becomes material is in fact very low.
The duty on operators of drilling sites is therefore onerous, with the task of the HSE straightforward to establish a breach. The consequences can be serious; a fine as well as adverse publicity.
Operators must therefore plan carefully and thoroughly for every possible eventuality. Their plans must also be flexible and adaptable so that a changing and evolving risk can be managed. There will need to be close co-operation with the police and local authority. Site security staff should have particular expertise and they need to understand the nature of the site and the operations being carried out every day fully. Reliable information about the protestors' plans will be invaluable. The effect of any protests on employees and local residents should be considered and the risks continually assessed.
Safe systems of work should be developed from the risk analysis and training may be needed as a result. Everything should be kept under close review to ensure that measures are effective. Detailed site audits, possibly from an independent perspective, should take place. Risk may also be mitigated with insurance and there should be a careful analysis of the costs and benefit available from the cover available on the market.
It is far easier and cheaper to prevent accidents from happening rather than trying to defend proceedings after the event. Time spent managing risks in advance is a good investment.
Here are some key action points:
- Conduct thorough risk assessments about not only your operations, but also how well organised protests might impact on what happens.
- Keep those risk assessments under constant review as the position on the ground changes.
- Having assessed the risks, work out how to eliminate, if not reduce them. This will require close liaison with other agencies and neighbours and an effective means of putting plans in place.
- Make sure that the measures work by auditing and talking to those on the front line.