Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3

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difficult to assess later on what possible impacts the shale gas projects had on the water. Finally, the Commission refers to the ambiguity surrounding the fact that hydraulic fracturing requires the injection of the wastewater (collected from the fracturing) back into the ground and whether this is allowed by the WFD. This uncertainty allows for different interpretations at the national level. 3.5 REACH Regulation Regulation (EC) no. 1907/2006 concerns an integrated system for the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH). This Regulation generates information and provisions on substances and their preparation and uses. Its purpose is to ensure a high level of protection of human health and the environment, including the promotion of alternative methods for assessment of hazards of substances, as well as the free circulation of substances on the internal market while at the same time enhancing competitiveness and innovation. The provisions shall apply to the manufacturers that place the substances on the market or use such substances on their own, in preparations or in articles and to the placing on the market of preparations. Firms that manufacture or import chemicals must evaluate the risks of these chemicals and take the necessary steps to manage those risks. REACH is based on the principle that it is for manufacturers, importers and downstream users to ensure that they manufacture, place on the market or use such substances that do not adversely affect human health or the environment. The leading principle is the precautionary principle. 112 First of all, firms are obliged to register chemicals which they manufacture or import. This will be registered in a central database which is controlled and managed by the European Chemical Agency (ECHA). Without registration, production or placement on the European market of the substance is not possible. Some substances are exempted, e.g. if their risk is negligible. Once registered, the ECHA will be able to evaluate whether the firms comply with their obligations and the requirements of REACH. Two kinds of evaluation may be carried out: dossier evaluation and substance evaluation. This could lead to a restriction or authorisation procedure, to the harmonisation of the classification and labelling of the substance or to the supply of information to other authorities in order to adopt appropriate measures. 113 With regard to substances that are of extremely high concern, the authorisation procedure may apply (Title VII). These substances are listed in Annex XIV to the Regulation. The aim is to ensure the good functioning of the internal market while assuring that the risks from substances of very high concern are properly controlled and that these substances are progressively replaced by suitable alternative substances or technologies where these are economically and technically viable. Finally, Title VIII allows for a restriction procedure. Annex XVII contains restrictions for certain substances. This restriction may be that a substance shall not be manufactured, placed on the market or used unless it complies with the conditions of that restriction. With regard to access to information, Article 118 of REACH declares Regulation (EC) No. 1049/2001 (regarding public access to European Parliament, Council and Commission documents) applicable to the documents held by the ECHA, unless paragraph 2 applies, which gives a list of information of which disclosure shall be deemed to undermine the protection of the commercial interests of the concerned person. Only where urgent action is essential to protect human health, safety or the environment, such as emergency situations, the ECHA may disclose this information. Article 119 sets out a list of information held by the ECHA on substances (on their own or in mixtures) that shall be made publicly available, free of charge, over the Internet. 112 Article 1, paragraph 1, REACH. 113 http://europa.eu/legislation_summaries/internal_market/single_market_for_goods/chemical_products/l21282_en.htm 26
Relevance for shale gas activities The Joint Research Centre (JRC) has assessed the use of substances in hydraulic fracturing of shale gas reservoirs under REACH. 114 The report was based on a number of REACH registration dossiers related to 16 substances that may come up while carrying out hydraulic fracturing. Here, it is concluded that in the investigated dossiers "neither hydraulic fracturing nor shale gas was explicitly mentioned in the investigated dossiers". 115 The substances were not designated to the use of hydraulic fracturing of shale gas reservoirs. However, implicitly some of the identified uses by the JRC may cover activities related to hydraulic fracturing of shale gas reservoirs. 26 different uses have been considered as possibly relevant. 116 The identification of those uses was made possible by two information items in the use description system as implemented in the IUCLID (which stands for International Uniform Chemical Information Database). 117 The first relevant information item was the use name as formulated by the registrant and the second information item was the Sector of Use as chosen by the registrant. With regard to the first information item, the registrant may choose the level of detail in the description of the use name. The report shows that most of the use names have been described very broad by the registrants. Moreover, the registrants did not make a distinction between conventional and unconventional reservoirs. 118 With the latter information item, the sectors of use 'Mining' and 'Offshore industries' were especially relevant. Section 3.5 also made it possible for registrants to choose one or more descriptors from the available pick-list of Process Category (PROC) and Environmental Release Category (ERC) in order to characterise the potential release due to the use of the substance. However, none of these options is specifically attributed to hydraulic fracturing. Some of the options made available by PROC might be considered as covering the same occupational exposure as hydraulic fracturing. However, with regard to ERC the same could not be said. 119 The JRC finally makes some recommendations which "could increase the availability of information on use, exposure and risk management for substances used in hydraulic fracturing of shale gas reservoirs". 120 These include the introduction of a more specific use name by the industry and the complementation of the use descriptor system with an additional ERC. 121 With regard to Articles 118 and 119, the Commission Staff Working Document places some comments, especially regarding the role for the public. 122 Currently, as also mentioned by the JRC Research, there is no specific use category in the Use Description System on shale gas or hydraulic fracturing. Therefore, it is not easy for the public to identify those substances in the ECHA database and to gain access to the information on the substances used in hydraulic fracturing. Non confidential information is only possible per substance, not per well. Hence, it is not possible for the public to exactly know what substances are used per shale gas project. This does not contribute to the desired transparency for and involvement of the public. Moreover, this issue of transparency and (non-)availability of information is not only difficult for the public, but also for drinking water companies. This is especially problematic since these companies are under a duty of care to deliver safe drinking water. This point will be elaborated in more depth latter on. 3.6 Mining Waste Directive Due to the special nature of the management of waste from the extractive industries, the EU has considered it necessary to introduce specific application and permit procedures in respect of waste 114 JRC Assessment (2013). 115 JRC Assessment (2013), p. 17. 116 JRC Assessment (2013), pp. 17-18. 117 IUCLID is the format of the technical dossier, referred to in Article 10(a) REACH (see Article 111 of REACH.) 118 JRC Assessment (2013), p. 18. 119 Here, the side note has to be made that registrants have the possibility to create an additional PROC and/or ERC themselves when they consider the available options not suitable. 120 JRC Assessment (2013), p. 42. 121 JRC Assessment (2013), p. 42. 122 Commission Staff Working Document Impact Assessment (2014), part 4/4, p. 35. 27
Page 1: Shale gas extraction: In line with
Page 4 and 5: Index 1 Introduction p. 7 1.1 Shale
Page 6 and 7: 7 Conclusions and Recommendations p
Page 8 and 9: to spread in the European Union. It
Page 10 and 11: 2 Context In this chapter some back
Page 12 and 13: the EU could produce more gas itsel
Page 14 and 15: minor tremors and community disrupt
Page 16 and 17: 2.3.1.3 Seismicity The risk of seis
Page 18 and 19: 3 Current European legislation on s
Page 20 and 21: As mentioned, Article 191(2) TFEU s
Page 22 and 23: the EIA Directive comes into play.
Page 24 and 25: project might have significant effe
Page 28 and 29: facilities used to receive such was
Page 30 and 31: Commission of the compensatory meas
Page 32 and 33: Operators carrying out any occupati
Page 34 and 35: On 18 September 2013, a day before
Page 36 and 37: once, by a maximum of 6 months. A d
Page 38 and 39: can occur is the infiltration of wa
Page 40 and 41: location near a sensitive area, suc
Page 42 and 43: establish an inpassingsplan. This i
Page 44 and 45: 4.6.2 Water As noted in Chapter 2,
Page 46 and 47: 4.7 Extraction permit The procedure
Page 48 and 49: 4.9 Overview problems From the anal
Page 50 and 51: 5 General (environmental) principle
Page 52 and 53: as a ground for invalidation). 211
Page 54 and 55: scale or effects of the proposed ac
Page 56 and 57: orders. Here, unilateral actions by
Page 58 and 59: 5.3 General principle: transparency
Page 60 and 61: emarkable that the CJEU also someti
Page 62 and 63: An important Dutch law which focuss
Page 64 and 65: follows after the subject is raised
Page 66 and 67: alance conflicting policies; the me
Page 68 and 69: prevailing social and political val
Page 70 and 71: It should be kept in mind, accordin
Page 72 and 73: concerning energy projects, in whic
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national legal system, such as the
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application for sustainable develop
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6 Application of principles to shal
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The second justification concerns t
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Finally, it could also be questione
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Hence, these principles are really
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As set out in Chapter 5, the princi
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On the other hand, it should be rea
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this zone is made available. Also,
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With regard to the second part of t
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7.1 Conclusions Some remarks can be
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Gas is currently in development. In
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national interest and an imperative
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safeguarding of the drinking water,
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• Prechal & De Leeuw (2008) S. Pr
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• Q&A on the shale gas initiative
Page 108 and 109:
• Case C-117/02 Commission v Port
Page 110:
Websites • http://www.eia.gov •
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