Commentary to article 353. Violation of the procedure for the liquidation and conservation of subsurface use facilities  The Code of the Republic of Kazakhstan on Administrative Offences  

     Failure to fulfill the obligation to eliminate the consequences of conducting subsurface use operations within the time limits established by the legislation of the Republic of Kazakhstan on subsurface and subsurface use, –

     entails a fine for small businesses or non–profit organizations in the amount of thirty, for medium–sized businesses - in the amount of fifty, for large businesses - in the amount of one hundred and fifty monthly calculation indices.

     The object of the offense is the social and legal relations on compliance with obligations to eliminate the consequences of conducting subsurface use operations within the time limits established by the legislation of the Republic of Kazakhstan on subsurface resources and subsurface use.

     127 of the Code of the Republic of Kazakhstan dated December 27, 2017 No. 125-VI SAM "On Subsoil and Subsurface use" states that the conservation of a subsurface area is carried out in accordance with the project for the conservation of a subsurface area approved by the subsurface user and having received positive conclusions from the examinations provided for by this Code and other laws of the Republic of Kazakhstan.

     The requirements for the conservation of a subsurface area for hydrocarbons are set out in the rules for conservation and liquidation during exploration and production of hydrocarbons, approved by the authorized body in the field of hydrocarbons.

     The conservation of the subsurface area is carried out:

     1) in a subsurface area, the right of subsurface use for which has been terminated, in the case provided for in subparagraph 2) paragraph 4 of Article 107 of the Code of the Republic of Kazakhstan "On Subsoil and Subsoil Use";

     2) upon suspension of the subsoil use contract for hydrocarbons in cases stipulated by the Code of the Republic of Kazakhstan "On Subsoil and Subsoil Use".

     A subsurface user (a person whose right of subsurface use has been terminated in the relevant subsurface area) is obliged (must):

     1) within two months from the date of termination of the right of subsurface use or suspension of the contract for subsurface use of hydrocarbons, approve and submit for examination a project for the conservation of a subsurface area provided for by the Code of the Republic of Kazakhstan "On Subsurface and Subsurface Use" and other laws of the Republic of Kazakhstan;

     2) complete the conservation of the subsurface area within the time limits set in the conservation project.

     The conservation of a subsurface area is considered completed from the date of signing the conservation act.:

     1) by a subsurface user or a person whose right of subsurface use has been terminated in the relevant subsurface area, or by a liquidation operator;

     2) a representative of the competent authority;

     3) representatives of authorized bodies in the field of environmental protection, the sphere of sanitary and epidemiological welfare of the population and local executive bodies of the region, the city of republican significance, the capital;

     4) in the case of conservation on a land plot that is privately owned or in long–term land use, by the owner of the land plot or the land user.

     Obligations to preserve a subsurface area for hydrocarbons are fulfilled at the expense of the subsoil user or the person whose right of subsurface use has been terminated, and in the case provided for in subparagraph 2) paragraph 4 of Article 107 of the Code of the Republic of Kazakhstan "On Subsoil and Subsurface Use", the amounts of obligations after their fulfillment are compensated to the subsurface user at the expense of collateral.

     In accordance with Article 128 of the Code of the Republic of Kazakhstan "On Subsoil and Subsurface Use", at any time before the expiration of the period of exploration or production of hydrocarbons, a subsurface user has the right to preserve or liquidate certain technological facilities used in conducting subsurface use operations, including structures, equipment, wells and other property.

     At the same time, during the production period under the contract for exploration and production or production of hydrocarbons, the subsurface user is obliged to liquidate wells that are subject to liquidation for technical and (or) geological reasons and cannot be used for other purposes in accordance with the field development project.

     Technological facilities are liquidated or preserved in accordance with the project of liquidation or conservation of technological facilities approved by the subsurface user and having received positive conclusions provided for by this Code and other laws of the Republic of Kazakhstan, with the exception of certain categories of wells provided for in the rules of conservation and liquidation during exploration and production of hydrocarbons, approved by the authorized body in the field of hydrocarbons, the liquidation or conservation of which It is carried out in accordance with the liquidation and conservation plan.

     The requirements for the conservation or liquidation of technological facilities are established in the rules of conservation and liquidation during the exploration and production of hydrocarbons, approved by the authorized body in the field of hydrocarbons.

     Financing of works on the conservation of technological facilities carried out outside the framework of the conservation of a subsurface area, the right of subsurface use for which has been terminated, in the case provided for in subparagraph 2) paragraph 4 of Article 107 of the Code of the Republic of Kazakhstan "On Subsoil and Subsoil Use", is carried out at the expense of the subsoil user.

     Financing of work on the liquidation of technological facilities carried out outside the framework of the elimination of the consequences of subsurface use of hydrocarbons is carried out at the expense of the subsoil user.

     According to Article 226 of the Code of the Republic of Kazakhstan "On Subsoil and Subsurface Use", the conservation of a solid mining site is a set of measures carried out during the temporary cessation of mining operations in a subsurface area in order to ensure the possibility of bringing production facilities and other facilities into a condition suitable for their operation in the future upon the resumption of mining operations, as well as reducing the harmful effects of hazardous production factors and preventing emergencies.

     The conservation of a subsurface area is carried out in accordance with a conservation project developed on the basis of a work program agreed upon by the subsurface user with the competent authority. The conservation project is coordinated with the authorized bodies in the field of environmental protection and industrial safety.

     The design and implementation of conservation are carried out at the expense of the subsurface user. Conservation work is considered completed after the signing of the conservation act by the subsurface user and a commission established by the competent authority from representatives of authorized bodies in the field of environmental protection and industrial safety, as well as by the owner of the land plot or land user, if conservation is carried out on a privately owned land plot, permanent or long-term temporary paid land use.

     Section 5 "Procedure for the Liquidation and Conservation of a Subsurface use facility" of the Rules for the Liquidation and Conservation of Subsurface Use Facilities, approved by Joint Order No. 200 of the Minister of Investment and Development of the Republic of Kazakhstan dated February 27, 2015 and No. 155 of the Minister of Energy of the Republic of Kazakhstan dated February 27, 2015, stipulates that for the liquidation and conservation of a subsurface use facility, The subsurface user sends a written notification of the need for the planned liquidation or conservation, indicating the expected dates for the start and completion of work on the liquidation and conservation of subsurface use facilities to the competent authority and the authorized body in the field of environmental protection.

     Attached to the notification are:

     1).feasibility study and economic calculation justifying the need for liquidation and conservation of subsurface use facilities;

     2).information on the remaining unprocessed mineral reserves, including for safety and other purposes, on the presence of simultaneously extracted, temporarily unused minerals, as well as industrial waste (in tailings dumps, landfills) containing and not containing useful components, harmful and toxic substances;

     3) a project agreed upon and approved by the subsurface user for the liquidation and conservation of a subsurface use facility.

     These documents must fully reflect information about the actual state of mineral reserves, the condition of the subsurface use facility, and the land surface limited by the land allotment.

     Subsurface use facilities are liquidated and preserved in accordance with a liquidation and conservation project developed by a design organization licensed to perform work and provide services in the field of environmental protection, exploration and use of subsurface resources, industrial safety, sanitary and epidemiological services, land management and approved by the subsurface user.

     The liquidation and conservation project includes the following documents:

     1).an explanatory note that reflects issues related to the appropriate preparation and immediate liquidation and conservation of the subsurface use facility;

     2) geological, surveying and graphic documentation that fully reflects the actual state of the subsurface within the mining or geological allotment of a given subsurface use facility;

     3) copies of topographic plans of the earth's surface, geological maps, sections and horizon-by-horizon plans of mineral deposits;

     4) schemes for the placement of liquidated or preserved subsurface use facilities, as well as other production facilities.

     The liquidation and conservation project includes the following activities:

     1) to ensure the safety of the public and personnel, the protection of the subsoil and the environment, buildings and structures, including measures to prevent water breakouts, gases, and the spread of underground fires;

     2) to prevent groundwater pollution;

3) to ensure the radiation safety of personnel and the public;

     4).assessment of the environmental impact of the liquidation and conservation of a subsurface use facility;

     5) measures that exclude unauthorized use and access to preserved subsurface use facilities for the period of conservation;

     6) in case of an emergency decision to stop production, taking measures to bring comprehensive measures to ensure the preservation of production facilities before their liquidation and conservation;

     7) for the reclamation of disturbed lands during liquidation;

     8) the conservation project should provide for measures to prevent economic activity at the facility under conservation.

     The liquidation project is being developed on the basis of a development assignment and should provide for measures to bring land plots occupied for subsurface use into a condition suitable for further use in order to involve them in economic turnover, depending on the direction, characteristics and mode of use of these land plots and local conditions.

     The conservation project and the terms of conservation of subsurface use facilities in each specific case are established by the subsurface user in agreement with the authorized body, which are provided for in the conservation project.

     An object under conservation provides for the collapse of the territory, is fenced and signs are installed on the fence indicating the name of the object being preserved and the date of conservation of the objects.

     Authorized bodies in the field of environmental protection, exploration and use of subsurface resources, in the field of industrial safety, sanitary and epidemiological service, land management and approved by the subsurface user, consider the liquidation or conservation project within no more than thirty calendar days, in case of re-approval, the period for consideration by authorized bodies of the liquidation and conservation project is fifteen calendar days.

     The liquidation and conservation project is approved by the subsurface user, who finances the design and implementation of the project, and the financing of works related to the liquidation and conservation of the facility is carried out at the expense of the liquidation fund.

     If the actual costs for the liquidation of subsurface use facilities exceed the size of the liquidation fund, the subsurface user provides additional financing for the liquidation of subsurface use facilities. If the actual liquidation costs are less than the size of the liquidation fund, then the remaining money remains with the subsurface user.

     Work on the liquidation and conservation of subsurface use facilities should be carried out in full accordance with the approved project.

     Acceptance of works on the liquidation and conservation of a subsurface use facility upon their completion is carried out by a commission established by the competent authority from representatives of authorized bodies in the field of environmental protection, industrial safety, sanitary and epidemiological service, for the study and use of subsurface resources, for land management and local executive bodies of the region, the city of republican significance, the capital.

     The composition of the commission is approved by the competent authority for each individual case. Decisions are made on the basis of a direct inspection and assessment of the completeness and quality of the work performed, provided for by the liquidation and conservation project, by each member of the commission without the right to replace.

     Within five working days from the moment of the direct inspection of the liquidation and conservation facility, an acceptance certificate for the liquidation and conservation of the subsurface use facility (hereinafter referred to as the acceptance certificate) is drawn up in accordance with Appendix 1 to the Rules.

     The acceptance certificate must be accompanied by:

     1).plans for the placement of liquidated or mothballed subsurface use facilities and other production facilities;

     2) the list and volume of actually completed works provided for by the liquidation and conservation project;

     3) a certificate of the actual costs incurred for the liquidation and conservation of the subsurface use facility.

     The Commission ceases its activities from the moment of the signed acceptance certificate.

     The act of acceptance of works on the liquidation and conservation of a subsurface use facility is approved by the authorized body within fifteen working days from the date of its receipt by the authorized body in the field of environmental protection. After its receipt, geological, surveying and other documentation is updated to subsurface users at the time of completion and within no more than thirty calendar days from the date of signing the acceptance certificate, submitted to the authorized body for the study and use of subsurface for storage.

     These documents reflect the remaining state of reserves and the degree of utilization of the mineral deposit, the state of production facilities, and the terrain on the given land surface.

     The objective side of the offense is expressed in actions (inaction) to fail to fulfill obligations to eliminate the consequences of conducting subsurface use operations within the time limits established by the legislation of the Republic of Kazakhstan on subsurface resources and subsurface use.  

     The subjective side of the offense is characterized by the fact that it can be committed either intentionally or negligently.  

     The subject of a special offense is a small business entity or a non-profit organization, a medium-sized business entity, or a large business entity.  

     In accordance with Part 1 of Article 687 of the Administrative Code, the authorized body for the study of mineral resources considers cases of administrative offenses provided for in Article 353 of the Administrative Code.

     According to Part 1 of Article 687-1 of the Administrative Code, the authorized body in the field of solid minerals examines cases of administrative offenses provided for in Article 353 of the Administrative Code.

     Part 1 of Article 688 of the Administrative Code states that the authorized body in the field of hydrocarbons considers cases of administrative offenses provided for in Article 353 of the Administrative Code.

     Part 1 of Article 688-1 of the Administrative Code stipulates that the authorized body in the field of uranium mining considers cases of administrative offenses provided for in Article 353 of the Administrative Code.

     In accordance with Part 1 of Article 697 of the Administrative Code, the authorized body in the field of environmental protection examines cases of administrative offenses provided for in Article 353 of the Administrative Code.

     According to Part 1 of Article 698 of the Administrative Code, the authorized body in the field of industrial safety examines cases of administrative offenses provided for in Article 353 of the Administrative Code (regarding technical safety).  

Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:

     Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);

     Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;

     Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);  

     Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);

     Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;

     Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;

     Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;

     Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);

     Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);  

     Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;

     Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;

     Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);

     Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;

     Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;  

     Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);  

     Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;

     Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.  

     Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).

Date of amendment of the act:  01.01.2020 Date of adoption of the act:  01.01.2020 Place of acceptance:  100050000000 Authority that adopted the act: 103001000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  5 Status of the act:  new Sphere of legal relations:  029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act:  COMM / CODE Legal force:  1900 Language of the Act:  rus  

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