Last reviewed 29 May 2018

Caroline Hand examines what is really meant by “best available techniques” (BAT) and how it is applied in the real world.

Fracking (hydraulic fracturing) is an issue which has polarised opinions in society — while many welcome it as a secure “homegrown” energy source in an uncertain world, others are seriously concerned about its environmental impact. Earlier this month, Friends of the Earth (FoE) attempted to delay the granting of Ministerial consent for Cuadrilla’s fracking operation in Preston. They have done this by applying for a judicial review of the environmental permit. In FoE’s view, the permit does not meet the requirements of the UK and the EU law in that it fails to specify the BAT for the management of the flowback fluid (a waste stream).

This case will be of interest to anyone who is following the debate about fracking but also has wider implications. The requirement to use BAT applies to the majority of industrial installations, mining operations and waste management activities. So what is BAT and how does it apply to your business?

What is BAT?

The Department for Environment, Food & Rural Affairs (Defra) gives a simple definition of BAT on its website:

BAT means the available techniques which are the best for preventing or minimising emissions and impacts on the environment …. “Techniques” include both the technology used and the way your installation is designed, built, maintained, operated and decommissioned.

Any operation which requires an environmental permit — in other words, most industrial installations, mining and waste management facilities — should employ BAT in order to protect the environment from the impact of their activities.

The requirement to use BAT is derived from the EU Industrial Emissions Directive (IED), which is implemented in the UK by the Environmental Permitting (England and Wales) Regulations 2016 and the Pollution Prevention and Control (Scotland) Regulations 2012. The environmental regulator (the Environment Agency (EA), Natural Resources Wales or SEPA) will draw up permit conditions based on BAT. Failure to comply with these conditions is an offence punishable by a fine or even by the suspension of the permit.

The European Commission has published detailed guidance on the techniques which constitute BAT. This is found in BAT reference documents (BREFs), to which the national regulators will refer when drawing up permits. The BREFs can be freely downloaded from the European Commission’s website at eippcb.jrc.ec.europa.eu. When the IED came into force, one of its main effects was to tighten up BAT and make it more difficult to depart from the techniques specified in the BREFs. However, the law does allow for alternative techniques to be used, provided the operator can make a good case for them, either on environmental or economic grounds. Anyone wishing to use alternative techniques will need to submit a detailed risk assessment to the regulator.

Many smaller facilities, particularly those involving waste or water treatment, operate under a standard permit. The permit conditions are set by the regulator for the sector as a whole and cannot be debated or varied by the operators. More complex or risky activities will have a bespoke permit specific to that site. These are drawn up in consultation with the operator and take account of local conditions. Permits for fracking would fall into this category. Any variation to a bespoke permit requires a risk assessment — this is relevant to the Cuadrilla case (see below).

How to comply with BAT

Some permits will spell out the BAT requirements. Other permits may merely specify that BAT must be used, leaving the operator responsible for consulting the relevant guidance. The latest BREFs include BAT Conclusion Documents which set out emission limits for the activity.

BAT and waste management

BAT will cover emissions to all the environmental media (air, water and land) plus noise, vibration and odours. For activities which generate waste, there are BAT indicating how waste can be managed in accordance with the waste hierarchy (see Waste Duty of Care topic for details). Defra’s general guidance states that when choosing waste recovery or disposal options, operators should:

  • consider ways to prevent producing waste

  • consider ways to reduce the amount of waste that is produced, eg by recycling

  • make sure the chosen waste recovery or disposal options cause the least possible damage to the environment.

These pointers are again relevant to the Cuadrilla case.

BAT and hydrocarbons

Significantly for this case, while there are official BREF notes for a wide range of industries, the BREF note for fracking has still not been finalised. In February 2018, the Commission announced that it will organise an exchange of information to draw up a BREF note on hydrocarbons exploration and extraction. This will not have the same official status as other BREF notes but will only be a non-binding reference document.

In order to regulate these extractive industries, the EA has drawn up its own guidance (Onshore Oil and Gas Sector Guidance, 2016) which includes information on BAT. On the issue of flowback fluid, the guidance states that:

Flowback fluid can be treated and reused as fresh injection fluid for the purpose of hydraulic fracturing and we consider this to be a suitable environmental option. Flowback fluid must be reused where it is reasonably practicable to do so to meet the Mining Waste Directive (MWD) obligation to minimise waste.

The guidance takes a cautious approach to the reinjection of this fluid into the rock formations; in order to guarantee the best protection for groundwater, the EA recommends that it is preferable for the fluid to be taken away for treatment at an appropriate water or waste treatment plant.

BAT and the Cuadrilla case

So how do these general principles relate to the specific case of Cuadrilla at Preston?

Cuadrilla proposes to dilute the flowback fluid before trucking it offsite to a treatment plant. FoE contends that this is not BAT, and contends that Cuadrilla should instead use electrocoagulation, a technique that removes suspended solids so that the fluid can be reused on site. This would reduce the consumption of fresh water and reduce the number of trucks on Lancashire’s roads.

On these technical matters, it appears that from the:

  • mining guidance, it is clear that the EA views the trucking of fluids to a treatment plant as an acceptable waste management option

  • general BAT for waste management, the recycling and reuse of waste is preferable to disposal

  • mining guidance, flowback fluid must be treated and reused “where it is reasonably practicable to do so”.

It would seem that the case hinges on whether electrocoagulation — a technique not mentioned in the EA guidance document — would achieve significant environmental benefits and be “reasonably practicable” for the operators.

Supporters of Cuadrilla argue that FoE should have presented their objections when the environmental permit was first granted in 2015. Instead, the campaigners have waited three years and challenged a minor variation to the permit, which does not specifically deal with the management of flowback fluid but concerns gas flaring, seismic monitoring and groundwater monitoring. The Agency is satisfied that the current permit provides a high level of protection for people and the environment.

The courts must now decide whether there is a case to answer, and in the meanwhile FoE has asked the Business Secretary, Greg Clark, to delay giving his consent to the fracking project.