This article first appeared in The Weekend Argus, 21 May 2011, pg 57
Commenting on the ongoing controversy regarding Shells proposal to initiative fracking for the recovery natural gas from subterranean shales over 90 000 sq km in the Karoo, Garth Watson, a Director of Gunstons Attorneys, has drawn the attention of those concerned and involved to the fact that, under certain sections of the National Environmental Management:Waste Act, 59 of 2008 (currently not yet in force, but which are due to implemented at an unknown future date), the owners of land that is, or may be, contaminated can be held liable for both a comprehensive professional assessment of the contamination situation and all measures deemed necessary to rectify matters. A fine of R10 million or ten years in prison could in terms of the National Environmental Management Act, 107 of 1998 could be imposed on any landowner who ignores a remedial order.
The majority of landowners in South Africa would probably struggle afford either the costs of the assessment or the remedial work, especially in areas of serious pollution, said Watson, and there are no signs that the applicable sections of the Act would be repealed or amended prior to proclamation.
Watson pointed out that the Minister of Water Affairs and Environment or the MEC will have the power under the Act to hold the landowner completely responsible for any contamination of the soil or water on his property. This will apply whether or not the owner was responsible for the contamination and even if the owner only took possession of the property recently. It also makes no difference if the contamination occurred or started before the commencement of the Act in 2008.
The Act, Watson added, could have very serious consequences for South African property values in the areas alleged to be contaminated. If contamination has occurred or is rumoured to have occurred, it could have a negative impact on the value of properties throughout the area in which the contamination is suspected, as new owners could be liable for the bill for both the investigation and the clean-up operations.
Watson said, too, that it would be an offence under the law to transfer any contaminated land to a new owner without informing the purchaser of the contamination and it would be an even more serious offence, punishable with a fine of R5 million or five years imprisonment, not to inform the Minister of any known contamination on any property of which you are the owner. A Contaminated Land Register will be set up, by the Minister in conjunction with the relevant Deeds Offices, in order to administer these provisions of the Act.
Furthermore, said Watson, the term contaminated, as defined by the Act, is now exceptionally wide.
It can be taken to mean the presence in or under any land, site, building or structure of a substance or micro-organism above the concentration that is normally present in or under that land, if the substance or micro-organism directly or indirectly adversely affects or even may affect – the quality of the environment.
While the Act is obviously pertinent to the Karoo fracking proposals, said Watson, it could also have far-reaching implications for any sort of pollution including land affected by acid mine drainage.
Jeremy Westgarth-Taylor, a Cape-based water conservation expert (and the proprietor of Water Rhapsody Conservation Systems), said that the main problems of fracking are that although it can take place at levels 3 000m to 6 000m below the surface, the fracturing of shale can open up paths to other levels.
In the USA, a study by academics of Duke College found that areas in a radius of one kilometre from a drill site had unacceptable levels of methane (ozone depleting hydrocarbon), propane and butane, which make groundwater unusable for any domestic of agricultural use whatsoever. To get to the shale layer, one has to drill through the shallow aquifer about which we know quite a lot. This aquifer is not more than 300 metres below the surface. There is a likelihood of a deep water aquifer below the shale level, but there are no studies whatsoever on the possibility of these aquifers mixing. It is likely that the deep water aquifers are more saline, and if these rise to the surface like an artesian well, the groundwater of the Great Karoo will be ruined forever.
It has to be appreciated that 2% of the water pumped in consists of toxic chemicals. This means that in a typical drill anything from 180,000 to 580,000 litres of harmful endocrine disrupting and carcinogenic chemicals are pumped into the ground and Shell themselves have admitted that in most drills only 60% to 80% of this liquid is recovered. The rest, regrettably, remains underground and could constitute a long-term contamination risk. Shell have promised on four occasions to provide the list of chemicals that they use, but have not done so. On one occasion they likened them to ice cream and on another to shampoo. They promised to publicise them in their EMP (Environmental Management Plan) but did not do so, their excuse being that these were of a proprietary nature, i.e. valuable information.
Westgarth-Taylor points out that if a company such a Shell, Falcon, Sasol or Bundu is awarded the mineral rights to extract gas in an area, they can arrive at a farm, negotiate with a farmer over the positioning of the drill pads, which would be 100m x 100m in size. If the negotiations are not successful, they can return with a court order and place the pads precisely where they like, e.g. 100 metres of the farmers house, or in the middle of his paddock.
There is simply nothing that the farmer can do to stop this and he would be locked off his own land. Quite simply the frackers are able to go when and where they like.
Furthermore, in a land so drastically short of water, it is as yet not clear where Shell propose to find the water that would be needed. If as Shell has proposed, seawater is used, this, too, could be environmentally unsound.
Drill pads can be only four kilometres apart and may have up to eight drill holes, each requiring 1000 truckloads of water and chemicals. Shell have said that they would place 30 000 pads which would result in 30 million truck loads traversing an area and the existing road network would be under severe stress.
There is also the problems for the frackers relating to the SALT telescope in Sutherland which by law requires a 75km radius (5 625 square kilometres) exclusion zone where no industry may take place. Dust, smoke and lights are forbidden. The new Square Kilometre telescope in the Carnarvon area for which prize South Africa is competing against Australia would also be affected. This radio telescope will not tolerate even cell phone use in an exclusion zone of 300km. There would be no electric lines, nor any other sort of industrial activity allowed. There could be absolutely no drilling for shale gas in this area while the radio telescope was in use. This exclusion zone alone is the same size of land area for which Shell has applied, i.e. some 90 000 sq km.
Why do these companies like Shell, asks Westgarth-Taylor, not invest in renewable energy from wind and solar in an area that is blessed with sunshine and wind. This could last millions of years rather than shale gas, which by Shells own admission, will last only five to fifteen years and ruin both the landscape and ground water in perpetuity.
The situation, he said, is exacerbated by the fact that, Shell, by their own admission, will not create many jobs in the area before, during, nor after the gas extraction. Renewables would create work opportunities in perpetuity.
Watson said that owners of land who suspect that it may be, or may become, contaminated should seek legal advice regarding the potential impacts of the Act.
For further information contact Garth Watson on 021 702 7763