Scottish Airports’ future with hydrogen – Civil liability and safety considerations

Progress on hydrogen-electric powertrains signals that UK airports could open to short haul hydrogen-powered air service before the end of the decade. Scottish regional airports, including Aberdeen, announced in November 2022 plans to develop short and medium range hydrogen services with leading hydrogen-electric engine firm ZerioAvia. These regional service prospects may follow projects for hybrid hydrogen air service with ZeroAvia similar to those recently signed with Birmingham Airport in Canada, The Netherlands, and Sweden. 

The UK Civil Aviation Authority (CAA) has signalled how its approach to safety, and its approval of airport’s safety management systems, could be affected by the storage and distribution of liquid and gaseous hydrogen at airports. With use of hydrogen imminent, aerodrome operators will need to consider how their long-running airside organisations will be impacted.

Consequently, Scottish airports must reflect on the impact of introducing hydrogen by identifying, designing, and providing a safe system of work reducing hydrogen supply risks to a level that is “as low as is reasonably practicable” (ALARP). This requirement reflects the UK aerodrome’s legal standing as occupiers and employers notably subject to the provisions of the Health and Safety at Work etc. Act 1974. The safety obligations owed to all airport employees and users will call for controlling, monitoring, and periodically reviewing the airports’ approach to safe hydrogen supplies. Legally, Scottish airports will at least be expected to introduce apron procedures protecting all those involved in the hydrogen turnaround process. A risk assessment would be advisable as part of the airport’s airside safety committee’s work. Findings from the risk assessment must be incorporated into each airport’s safety management system. This exercise will demonstrate adjustments and procedures aimed at reducing hydrogen-related health and safety risk as low as is reasonably practicable.

In terms of airside safety and fuelling management, the industry’s practice is already governed by the CAA’s Airside Safety Management (CAP 642), the Aircraft Fuelling and Fuel Installation Management (CAP 748) guidance, and the Joint Operating Group guidelines’ standards. Yet, the CAA has expressed views that sustainable aviation solutions will call for regulatory adjustments that should reflect the novel aspects coming with technologies such as new fuel solutions. 

Operation safety requirements will also mandate airport authorities to conduct proactive checks on hydrogen suppliers and their technology. Authorities must therefore demonstrate how they monitor and authorise the storage and supply of hydrogen by means of technology and processes that should render hydrogen-related hazards as low as is reasonably practicable. Safety guidance for hydrogen will also need to evolve according to the hydrogen air market reality and the first generation of aircraft operators who may well need to self-handle hydrogen supplies.

Assuming that Jet A-1 fuel providers would choose to become hydrogen suppliers, contracting for airside hydrogen supplies will also require adjusting the existing supply agreements. Indemnity and hold harmless provisions will logically survive, but indemnity thresholds may need to evolve to further protect future hydrogen clients. Evidently, the CAA and airports will not approve the licencing of hydrogen airside services not relying on certified solutions for the safe storage and delivery of hydrogen to aircrafts.

This new fuel supply is likely, however, to raise issues in terms of civil liability insurance where hydrogen providers may face higher premiums for insurance cover, at least in the beginning, given the risk perception associated with innovations.

In the International Air Transport Association’s (IATA) standard contract for fuelling services the above insurance cover is defined as an “airline aviation general third-party liability insurance.” This cover is subscribed according to limits agreed between the fuel supplier and its client. In order to mitigate insurance costs and higher premiums possibly charged to hydrogen providers, aircraft operators could carry some of the hydrogen delivery risk by adding the refuelling operator as an additionally insured under their own aviation policy. This arrangement would replicate certain airside industry practices whereby aircraft operators hold non-fuel ground handling service providers harmless against passenger and property claims for death, injury, loss, or delays. However, in recent years, there has been a trend towards reducing the insurance protection offered by aircraft operators to non-fuel ground service providers. 

A future with hydrogen at UK aerodromes would also envisage turning airports into multimodal hydrogen hubs. Next to aircrafts, HGVs, buses, private cars, or organizations requiring hydrogen, could access the UK airports’ infrastructure for hydrogen supplies. Civil engineering firms have already designed scenarios that could see regional airports developing industry-level storage capacity, also allowing for on-site hydrogen liquefaction or production.

With growing volumes of hydrogen coming under their control, airport operators will quickly fall under the existing rules protecting populations and the environment against major accidents involving dangerous substances. With hydrogen volumes needed, tanker-based scenarios are likely to call for a capacity immediately in excess of the Health and Safety Executive (HSE), and Scottish Environment Protection Agency’s (SEPA) Control of Major Accident Hazards Regulations 2015 (“COMAH”). COMAH regulations set a 50-tonne threshold for their upper-tier hydrogen storage. COMAH’s lower-tier also starts at five tonnes and requires a Major Accident Prevention Policy.

Hitting COMAH thresholds for airports will mean introducing specific on-site safety measures, off-site emergency plans, a safety and inspection regime, and meeting other land use and local planning requirements. In Scotland, The Planning (Hazardous Substances) (Scotland) Regulations 2015 also sets the level of controlled quantities of hydrogen at two tonnes and will require meeting specific planning requirements in terms of size, distance, substance control, and local consent.

The above requirements will rapidly transform the local airports’ industrial safety profile, even if Scottish airports already have decades of experience organising their safety regime for Jet A-1 supplies. 

Nicolas Maulet, SFHEA is a PG lecturer in Applied Energy Law and Policy within the Law School. Nicolas delivered a presentation on hydrogen and the Scottish regional airports’ civil liability at the 2023 Society of Legal Scholars annual conference which took place at Oxford Brookes University, Oxford, England between June 27, and June 30, 2023. 


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