Net zero and hydrogen: the possible regulatory landscape

Fire, explosion, gas leaks or carbon monoxide poisoning are just some of the major consequences that can arise. Introduce ‘hydrogen’ into this medley, and further considerations need to be given because as history shows, hydrogen and gas-related activities that are not managed correctly can have serious, as well as nearly fatal – or fatal – consequences.

The past

As examples, you only have to look at the Hindenburg airship and Fukushima nuclear plant disasters, where the presence of hydrogen was a contributing factor. In more recent times, 2019 also saw hydrogen-related safety incidents in Norway, California and South Korea. In the UK, we cannot forget the Buncefield fuel storage depot disaster in 2005; the severity of the explosion was far greater than could reasonably have been anticipated. Fortunately, there were no fatalities at Buncefield, but more than 40 people were injured, and the risk to life considerable.

Emma Evans: "The UK is forging its path ahead for hydrogen to play a greater role in the transition to clean, safe and sustainable energy systems as part of ‘net zero’."

The Major Incident Investigation Board’s report identified various management safety failings in the Buncefield incident, and while hydrogen was not involved on this occasion, these failings have been seen across other major gas incidents. For example, poor communication, competency and training levels for engineers, and failures to implement management of change processes during operations.

The present

While there could be numerous benefits from using a ‘cleaner’ and ‘greener’ fuel to help achieve the UK government and legislative (The Climate Change Act 2008) aims of ‘net zero’ greenhouse gas emissions by 2050, some people are concerned that the use of hydrogen could create new safety risks. This is despite the fact hydrogen generally has some properties that can make it safer to handle than conventional fuels. The oil and gas industries, in particular, are likely to have a vital role in supporting and delivering on this energy mix for the future.

Unlike other gases, hydrogen is non-toxic, odourless, tasteless, and light. However, the chemical structure of hydrogen gas makes it flammable and relatively easy to ignite. Therefore, the safety considerations around the production, transport, storage and supply of hydrogen (in particular, during the planning, consenting and operational stages of any relevant hydrogen project or scheme), must be treated carefully and be well thought-out. The UK government is currently seeking more evidence on the long-term feasibility of using hydrogen in things like domestic heating systems.

Legal considerations

There is already a well-established legislative regime that provides a robust framework in the UK around gas safety and, certainly, this will continue to apply to ‘hydrogen’ in the immediate future.

This includes the Health and Safety at Work Act 1974, The Gas Safety (Management) Regulations 1996 (GSMR) and The Pipeline Safety Regulations 1996, among others. Notably, the GSMR only currently permits 0.1 per cent hydrogen to be introduced to the existing gas network. For greater amounts – say up to 20 per cent by blending hydrogen into the network – this needs to be permitted (as seen in some of the trials currently taking place) by way of direct exemption from the Health and Safety Executive (HSE), which is the main regulatory body. Exemptions are allowed for increased use of hydrogen, only where it can be shown that the health and safety of any person likely to be affected by the exemption, will not be prejudiced in any way.

Role of the regulator

In terms of enforcement activity, although gas as an industry and the Control of Major Accident Hazard sites are generally tightly regulated and controlled environments, those working in these areas are often knowledgeable and have significant levels of expertise, so high levels of enforcement activity don’t always follow. HSE is certainly, at the moment, very much seen as an ‘enabler’ and project partner in the development of hydrogen processes. As such, it may be the case that HSE saves any future enforcement action for only the more serious breaches or more limited occasions, where serious safety implications could be seen to arise.

Back in 2010, five companies were ordered to pay health and safety fines of £9.5 million collectively for their part in Buncefield. Any incident like this today would clearly attract a much higher level of financial penalty under the Definitive Sentencing Guideline for Health and Safety Offences. This is because the guideline instead now centres around the ‘risk of harm’ created by the offence (which involves making an assessment of the likelihood of harm and seriousness of the harm risked). Also, the guideline means that, in normal circumstances, health and safety offences can be punished with fines up to a maximum of £10 million.

The future

This August, the UK government published its much awaited Hydrogen Strategy – bit.ly/3tMjz2q In 2021 and beyond, Parliament – together with further input and guidance from HSE (and other stakeholders) – will undoubtedly be reviewing (likely as part of the soon to be established Hydrogen Regulators Forum), the regulatory landscape to consider what amendments, if any, may be necessary to address the safe use of ‘hydrogen’. They may therefore possibly permit increased use of hydrogen once all considerations have been looked at. This may well potentially involve future consultation around the legal provisions themselves, as well as any relevant updates needed to Approved Codes of Practice, such as the ‘L82’ guidance published by HSE, A guide to the Pipelines Safety Regulations 1996.

If hydrogen is introduced even more widely into transport, domestic heating, cooking or industrial processes, it will be vital to ensure that adequate processes are in place for things like the correct and safe maintenance and inspection of equipment that produces, supplies or stores ‘hydrogen’ fuel. It will also be vital to ensure that those responsible for undertaking these processes and inspections remain competent to do so. An increased relevance and advancement around the ‘safety case’ is also likely to play a vital part in the future deployment of hydrogen.

The 9th International Conference on Hydrogen Safety (ICHS 2021) was held in Edinburgh, Scotland on 21–23 September 2021 under the auspices of the International Association for Hydrogen Safety (HySafe) – see: hysafe.info/ichs2021/ To conclude, it would seem that the UK is certainly forging its path ahead for hydrogen to play a greater role in the transition to clean, safe and sustainable energy systems as part of ‘net zero’.

If this area applies or is relevant to your industry, continuing to ‘horizon scan’ for future developments – and monitoring what comes from further government thinking, the planned Hydrogen Regulators Forum and ICHS 2021 combined – will be worthwhile, as the use of hydrogen appears set to continue and increase (both in the UK and globally), to maximise decarbonisation opportunities and help industries tackle climate change head-on.

Emma Evans is Senior associate at Pinsent Masons LLP