Hydrogen: planning and consenting guidance

9. Other Legislative Requirements

The Guidance has focused on the consenting of hydrogen production projects.

However, developers should also be aware of the wider legislative and regulatory framework and associated requirements that may be relevant depending on the nature, scale and siting of a hydrogen project.

9.1. Health & Safety

In addition to COMAH and HSC requirements there is a range of wider health & safety legislation and regulations relevant to hydrogen production, storage and distribution. The applicability and means of ensuring compliance will depend on the nature of the project, but they should be closely reviewed by all project developers.

• The Health & Safety at Work Act is the primary legislation governing occupational health and safety in Scotland. It enshrines a commitment to risk assessment and risk reduction through a hierarchy of controls and will apply to the design, construction and operation of all hydrogen facilities in Scotland. The HSE have prepared additional resources and guidance to support compliance with the requirements of the Health & Safety at Work Act.
• The Pipelines Safety Regulations, made under the Health and Safety at Work Act, cover the conveyance of dangerous fluids by pipeline (whether onshore or offshore) and would apply to a hydrogen pipeline. The Regulations cover design, construction and maintenance requirements and the management of incidents and emergencies. The HSE are the regulator for pipelines under the Pipelines Safety Regulations.
• The Gas Safety (Management) Regulations (GSMR) apply to the conveyance of ‘gas’^[30] through pipes to domestic and other consumers, but not to dedicated networks for industrial or other non-domestic use. If hydrogen was to be transported as part of a blend with methane for heating or other domestic purposes, then a safety case must be prepared and submitted to the HSE prior to operation. An exemption under GSMR would have to be applied for the <0.1% molar limit on hydrogen composition to be exceeded. Future policy and regulation around use of hydrogen as a fuel is under consideration. The HSE is the regulator for the Gas Safety (Management) Regulations.
• The Gas (Calculation of Thermal Energy) Regulations require any public gas transporter to ensure that the thermal value of gas that it supplies is quantifiable at all times.
• The Dangerous Substances and Explosive Atmospheres Regulations (DSEAR) 2002 provide minimum requirements for improving the health and safety protection of workers potentially at risk from explosive atmospheres. It requires employers to control the risks to safety from fire, explosions and substances corrosive to metals. HSE have prepared additional guidance and information for employers on the requirements of the DSEAR.
• The Pressure Equipment (Safety) Regulations 2016 relate to the design and manufacture of pressurised equipment (maximum allowable pressure >0.5 bar) and the Pressure Systems Safety Regulations 2000 (PSSR) relate to duties imposed around the use of pressure systems at work and minimising risk to health and safety. They aim to prevent serious injury from the hazard of stored energy (such as hydrogen) as a result of the failure of a pressure system or its component parts. HSE have prepared specific guidance and resources for employers on compliance with these Regulations as well as wider information around pressure systems and their safe operation.

Developers should also have regard to potential requirements arising from the Building (Scotland) Regulations 2004 and the Fire (Scotland) Act 2005 – which must be complied with for all new development and equipment involved.

9.2. Pipelines

Pipeline Construction

Specific legislation and regulations control the construction and safe operation of pipelines, which must be closely reviewed and discussed with regulatory authorities if proposing to transport hydrogen via pipeline.

Under the Pipe-Lines Act 1962 the construction of a cross-country pipeline greater than 10 miles (16 kilometres) requires authorisation from the Scottish Ministers unless it is excluded under section 65 of the Pipe-Lines Act 1962. A pipeline for the conveyance of hydrogen is not excluded under section 65 of the Pipe-Lines Act 1962. Any pipeline which is less than 10 miles will still require planning permission unless it falls within permitted development under class 39 of the Planning (General Permitted Development) Order, which applies only to public gas suppliers.

An application to the Scottish Ministers must contain the Information set out in part 1 of schedule 1 of the Pipe-lines Act. It must be served on every planning authority in whose area any part of the route of pipeline will lie. Certain other statutory consultees, such as SEPA, must also be notified. If any objections are received from any relevant planning authority then the Scottish Ministers must either hold a public inquiry or consider the objection by written representations unless the objection is withdrawn. Schedule Part I of the Pipe-lines Act sets out in details the procedure to be applied by the Scottish Ministers in processing an application for pipelines consent including where objections are received.

An EIA will be required for every application for authorisation under the Pipe-line Works (EIA) Regulations except where the Scottish Ministers have issued a direction under regulation 4 of the Pipe-line Works (EIA) Regulations that no EIA is required because the pipeline works are not likely to have a significant effect on the environment. The applicant can request from the Scottish Ministers confirmation of the scope and level of the required EIA.

Upon granting a pipe-line authorisation the Scottish Ministers may direct that planning permission is deemed to be granted (section 5(1) of the Pipe-lines Act). If the pipeline is being constructed by a public gas transporter the The Public Gas Transporter Pipe-line Works (EIA) Regulations will apply.

Gas Licences

The Gas Act 1986 is UK wide legislation which prohibits certain activities, namely, the supply, shipping or transportation of gas via pipelines unless the person carrying on that activity is licenced or is exempt from the requirement to hold a licence.

Hydrogen is included within the definition of “gas” in the Gas Act, such that any person wishing to supply, ship or transport hydrogen will require a licence from Ofgem (unless exempt). A producer of hydrogen will therefore require a licence under the Gas Act if it falls within section 5(1) of the Gas Act.

The Office of Gas and Electricity Markets (OFGEM) are responsible for granting all licences for the supply, shipping or transportation of gas under the Gas Act. Reflecting the different potential distribution modes for gas there are four types of gas licence:

• A Gas Transporter Licence allows the licensee to convey gas through pipes to any premises within an area authorised by the licence or convey gas through pipes to any pipeline system operated by another gas transporter, or other pipeline system specified in the licence.
• A Gas Interconnector Licence allows the licensee to participate in the operation of a gas interconnector which is defined as coordinating and directing the conveyance of gas into or through a gas interconnector or making such an interconnector available for use for the conveyance of gas.
• A Gas Shipper Licence allows the licensee to arrange with a gas transporter for gas to be introduced into, conveyed through, or taken out of a pipeline system operated by that gas transporter.
• A Gas Supplier Licence allows the licensee to supply gas to any premises through pipes. A Gas Supplier Licence can allow supply to either domestic and non-domestic premises or non-domestic premises only.

The Gas (Applications for Licences and Extensions and Restrictions of Licences) Regulations regulate the procedure to be followed when applying for a transporter, shipper, supplier or interconnector licence from Ofgem. Detailed guidance has been prepared by OFGEM setting out detail on the process and requirements to be followed and can be accessed at Gas and Electricity Licence Applications – Guidance.

Early discussions should be held with Ofgem for any proposed hydrogen production facility which is likely to transport, ship or supply the hydrogen it produces.

9.3. Road and Rail Transport

In addition to any relevant Gas Licence(s), where hydrogen is proposed to be transported by tube trailers or other forms of road or rail transport The Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations (2009) should be closely reviewed.

The Regulations implement European directives concerning carriage of dangerous goods by road or rail and place duties upon everyone involved to ensure risk of incidents is minimised and effective response planning is in place. This includes the transport of hydrogen which is classified as a dangerous good under the relevant European Directives.

A detailed review of the Regulations has been prepared by the HSE and is available at Introduction to the Carriage of Dangerous Goods. Further detail and specific guidance on the enforcement of the Regulations can be viewed at Carriage of Dangerous Goods Manual.

The Pressure Equipment (Safety) Regulations 2016 (referred to above) would also apply to the design, manufacture and operation of tanks used to transport hydrogen.