COMMENTARY TO ARTICLE 6. ENVIRONMENTAL SAFETY IN THE USE OF SUBSURFACE RESOURCES TO THE CODE OF THE REPUBLIC OF KAZAKHSTAN "ON SUBSURFACE RESOURCES AND SUBSOIL USE"
Subsurface use should be carried out in environmentally sound ways with the adoption of measures aimed at preventing pollution of the subsoil and reducing harmful effects on the environment.
________________________________________________________________________________________
(M.B.Telemtaev, M.A. Ibragimov)
1. In general, environmental safety, as an integral part of national security, is generally understood to mean a certain "state of protection of the rights of vital interests and rights of man, society and the state from threats arising from anthropogenic and natural impacts on the environment."
At the same time, the legislator, consistently setting the priority of this type of safety, proceeds from the presumption of the environmental danger of any industrial, economic and other activities involving certain types of use of natural resources, including subsurface use.
In accordance with Article 31 of the Constitution of the Republic of Kazakhstan, environmental protection is one of the goals of the state, by virtue of which environmental safety is ensured by its special ecological function. One of the main directions in the implementation of this function is the establishment by the state of a certain legal regime and governmental regulation in this area of relations. To this end, the state, among other things, in one form or another establishes environmental safety as a principle of legislation in almost all major legislative acts regulating relations in the field of ecology and nature management. The Subsoil Code was no exception in this regard.
2. The commented article also establishes environmental safety as one of the principles on which the legal regulation of relations in the field of subsoil use is based in the Republic of Kazakhstan and which are listed in the previous Article 4 of the Subsoil Code.
A similar provision was contained in Article 7 of the previously valid 2010 Law on Subsoil, which, as one of the principles of the legislation of the Republic of Kazakhstan on subsoil use, also contained a provision according to which "ensuring the prevention of pollution of the subsoil and reducing the harmful effects of subsoil use operations on the environment" was a "prerequisite for subsoil use." Thus, the Code on the Subsoil, consolidating environmental safety
Based on the principles of the legislation on subsurface resources, it retains continuity from previous legislation on subsurface resources in the issue of the need to form and operate a legal regime for subsurface use that would take into account the requirements of environmental safety to the maximum extent possible.
This desire of the legislator is quite understandable, given that, due to its specifics and direct interaction with the natural environment, subsurface use, especially on a large industrial scale, has always been and continues to be an ecologically "intense" activity and acts as a very powerful negative anthropogenic factor affecting the ecological system.
3. As a principle on which the construction of many institutions and norms of subsurface use law is based, the provision of the commented article finds expression in a number of subsequent provisions of the Code on Subsurface Resources, affecting the regulation of relations that have environmental safety as their object. To one degree or another, and with varying degrees of detail in the regulations, issues of environmental safety and environmental protection during subsurface use operations are directly addressed in more than forty-five articles of the Subsoil Code.
The regulatory requirements contained in these articles are very diverse.
Some of them are norms of direct action, in which one or another rule of behavior addressed to the subject is directly formulated. 146, 158 and 159 of the Subsoil Code, which contain a direct ban, respectively, on the burning of crude gas, on the construction and operation of oil storage facilities and reservoirs at sea, and on the discharge into the sea and burial on the seabed of waste during exploration and (or) production of hydrocarbons at sea.
Other regulations can be classified as reference ones, which, without setting out the actual rules of conduct, refer to another article of the Code of the Subsoil. Thus, Article 52 of the Subsoil Code establishes a rule according to which, in cases provided for by the Subsoil Code, subsurface use is prohibited without a positive conclusion of the state environmental assessment or without coordination with the authorized body in the field of environmental protection. In turn, the specified
The cases are already determined by other rather numerous articles of the Code on Subsoil, prescribing the need to obtain in a given situation the results of an environmental assessment or coordination with the authorized body for environmental protection.
Finally, the most common types of regulations governing environmental issues are the blank standards of the Subsoil Code. The provisions contained in them refer not to specific articles of the same regulatory legal act, but to the norms of other regulatory legal acts related to environmental legislation. For example, Article 88 of the Subsoil Code stipulates that project documents for the geological study of the subsoil "must include an environmental impact assessment in cases provided for in the instructions for drawing up project documents for the geological study of the subsoil," and Article 139 of the Subsoil Code establishes that "project documents in the field of subsoil use for hydrocarbons are subject to state environmental assessment conducted in accordance with the environmental legislation of the Republic of Kazakhstan". 89 of the Subsoil Code prescribes that a subsurface user has the right to carry out work within a geological study site in compliance with environmental safety requirements, which, in turn, are already contained in the texts of regulatory legal acts of environmental law. The blank rules of Article 52 of the Subsoil Code are that "subsurface use operations, including forecasting, planning and designing of production and other facilities, must comply with the requirements of the environmental legislation of the Republic of Kazakhstan," and "the ecological condition of the subsoil is ensured by rationing maximum permissible emissions, limiting or prohibiting subsurface use activities or certain types of it." In these and many other cases, the mentioned provisions of the Subsoil Code do not directly contain specific rules of an environmental nature, but refer to environmental legislation as a whole, its individual regulatory legal acts or norms.
4. All the variety of norms of the Code on the Subsoil on environmental issues can also be differentiated by the types of operations that these norms are aimed at regulating. Thus, the environmental requirements contained in the Subsurface Code are both general in nature and apply to all subsurface use operations (art.52), and relate to such specific types of operations provided for by the Subsurface Code as
geological exploration of the subsurface (Articles 88 and 89), mineral exploration (Articles 121, 122, 194, etc.), mining (Articles 125, 176, 214, etc.), use of subsurface space (Articles 251, 257, 259, 262), as well as prospecting (Articles 264, 271, 276).
5. With regard to certain subsurface use operations, the norms of the Code on Subsurface Resources on Environmental Issues provide for requirements for the content and procedure of individual actions, which must be carried out taking into account, among other things, environmental norms and rules. Examples of such actions regulated by the relevant environmental rules of the Subsoil Code include the placement of man-made mineral formations (Articles 13), the elimination of the consequences of subsurface use (Articles 54, 126, 177, 218, 259, etc.), the combustion, processing and disposal of crude gas (Articles 146 and 147), the preparation of plans to ensure preparedness and response measures for oil spills at sea, inland waters and in the safety zone (Articles 155 and 156), obtaining the status of retention and conservation of a subsurface area during the extraction of solid minerals (Articles 222, 226, etc.).
6. The provisions of the Subsurface Code, which include environmental regulations of various kinds, apply to all subsurface resources in the form of minerals, including hydrocarbons and solid minerals, as well as to man-made mineral formations and subsurface space (art.121, 122, 174,176, 177, 194, 214, 251, 257, 259 and others).
7. The environmental norms of the Subsoil Code are important in determining the territorial limits and conditions for conducting subsurface use operations in certain, including ecologically valuable territories, including exploration, production and other related actions of subsurface users in the territories of the sea, inland waters and protective zones, as well as operations in the territory for prospecting, etc.Articles 25, 26, 154-159, 264, etc.).
8. The provisions of the Subsoil Code, which contain prescriptions of an environmental nature, are addressed to a wide range of entities that enter into relations on subsoil use, regulated, among other things, by the norms and rules of environmental legislation. First of all, such entities are subsurface users and the relevant competent authority. In addition, in a number of cases, these standards also apply to the authorized body for environmental protection, as well as local executive bodies.
regions, cities of republican subordination, the capital and the Government of the Republic of Kazakhstan (art.59, 65, 88, 126, 156, 177, 196 and others).
9. The environmental regulations of the Subsoil Code apply to all basic documents in the field of subsurface use, including the Management Program of the state subsoil Fund, the Unified Cadastre of the State Subsoil Fund, all types of design documents for conducting various operations on subsurface use and passing environmental expertise, licenses and contracts for the right of subsurface use, the documents that formalize the design. and the proper completion of liquidation measures, etc. (art.23, 31, 36, 70, 72, 139, 182, 196, 216, 217, 226, 251, 257, 273 and others).
10. It should also be emphasized that environmental safety in the use of subsurface resources as a principle of legislation is not limited to influencing only the norms of the Code on Subsurface Resources. This principle is consistently implemented in other regulatory legal acts of the legislation on subsoil and subsurface use, including acts of a subordinate nature regulating this area of relation10. It should also be emphasized that environmental safety in the use of subsurface resources as a principle of legislation is not limited to influencing only the norms of the Code on Subsurface Resources. This principle is consistently implemented in other regulatory legal acts of the legislation on subsoil and subsurface use, including acts of a subordinate nature regulating this area of relations. For example, such acts as the Rules for Issuing Permits For example, such acts as the Rules for Issuing Permits for the Development of mineral deposits, approved by the Order of the Minister of Investment and Development of the Republic of Kazakhstan dated May 23, 2018 No. 367, Guidelines for drafting projects for the development of oil and gas fields, approved by the Order of the Minister of Energy of the Republic of Kazakhstan dated August 24, 2018 No. 329, the State Budget Management Program the Subsoil Fund, Approved by the Order of the Minister of Investment and Development of the Republic of Kazakhstan dated June 28, 2018 No. 478 and many other subordinate regulatory legal acts in the field of subsurface use are invariably based, among other things, on the principle enshrined in the commented article of the Subsoil Code.
Thus, the provision on environmental safety in the use of subsurface resources, fixed by the Code on Subsurface Resources as a principle of the legislation of the Republic of KaThus, the provision on environmental safety in the use of subsurface resources, fixed by the Code on Subsources as a principle of the legislation of the Republic of Kazakhstan on subsurface resources and subsurface use, is the basis on which other norms of the Code on Subsurface Resources and other subordinate regulatory legal acts adopted in accordance with the Code on Subsurface resources regulate the sphere of subsurface use and provide for various requirements in areas of ecology. Such requirements are comprehensive and systemic in nature, as they apply to all types of subsurface use operations and individual actions during such operations, to all subsurface resources, the use of which is provided for by the Subsurface Code.,
The territorial limits of the implementation of subsurface use operations, the range of entities entering into subsurface use relations and all the main documents mediating their activities are determined. It is the existence and steady implementThe territorial limits of the implementation of subsurface use operations, the range of entities entering into subsurface use relations and all the main documents mediating their activities are determined. It is the existence and steady implementation of the principle under consideration in the legislation on subsoil that has made it possible to form within its framework an extensive system of norms designed to reliably and consistently ensure environmental safety in the field of subsoil use.
Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases
Kazakh Association of Organizations of the Oil and Gas and Energy Complex KAZENERGY
Nur Sultan 2022
The Kazenergy Associa Kazenergy Association expresses its sincere gratitude for the support in preparing the commentary to the following companies: North Caspian Operating Company NV, NC KazMunayGas JSC, Mangistaumunaygas JSC, Karachaganak Petroleum Operating BV, White & Case Kazakhstan LLP, Haller Lomax LLP)", "Erlicon CG" LLP, "Signum Law Firm" LLP. © Kazenergy Association, 2022 © team of authors, 2022 © authors, 2022
Dear readers!
We offer you a scientific and practical commentary prepared by a group of Russian specialists with extensive practical experience in legislation on subsoil andWe offer you a scientific and practical commentary prepared by a group of Russian specialists with extensive practical experience in legislation on subsoil and subsoil use and who participated in the preparation of the Code on Subsoil and Subsoil Use.
Subsurface use is a very complex and specific area of public relations, the regulation of which has its own historical background and takes into account the technological specifics of the process of subsurface development, as well as environmental, commercial, legal and other features of exploration and development of deposits.
Kazakhstan's legislation on subsoil and subsurface use has passed through several stages in its development, and has always been based on a balance of interests between the state and subsurface users, transparency, striving for the maximum possible degree of protection of the rights and legitimate interests of investors, ensuring sustainable social, economic and environmental development of the country.
The Code "On The Code "OnSubsoil and Subsoil Use", adopted at the end of 2017, was developed taking into account many years of accumulated experience and law enforcement practice, as well as the results of extensive discussions with experts working in the industry.
It reflects specific, important measures on the part of the state to increase the investment attractiveness of exploration and further reduce administrative barriers.
Nevertheless, practice and legislation do not stand sNevertheless, practice and legislation do not stand still, constantly evolving, taking into account new challenges facing both the subsurface use industry and the economy as a whole.
In this regard, this commentary is intended to serve as an aid for a wide range of interested persons – specialists working in the industry, in
understanding the meaning of the norms, their historic
