Keep Up the Good Work Posted: February 28, 2003
Dear Friends: YOUR OPPOSITION TO HOUSE BILL 458 - THE OIL & GAS INDUSTRY'S BILL - IS WORKING. Senate leadership is hearing from many of you that counties need the power to protect their citizens from abuses caused by that industry to private landowners and the environment.
The industry, trying to head off an effort by Letcher County to curb industry abuse by regulating the location of their gas transport lines (called "gathering lines"), proposed to blanketly override almost all county authority. They claim to want what coal has -- a single statewide standard of conduct. A proposed amendment would give them just that. Drafted by KRC and supported by Kentuckians For The Commonwealth and Kentucky Conservation Committee, would demand that the Department of Mines and Minerals develop a permit program for controlling all environmental impacts of all aspects of the industry. A copy of the proposed amendment is attached.
Your calls and faxes have slowed a bill that the industry thought would sail through the Senate. Senate leadership appears to be giving more thought to the radical nature of this assault on county home rule authority. Please - call and leave a message for all Senators to oppose HB 458 unless it is amended as proposed by KRC, KFTC and KCC. The message line is 1-800-372-7181; and the fax line to send a single fax for all Senators is 502-564-6543 (you must list the Senators on the cover sheet - here's the list: Williams, Roeding, Kelly, Borders, Tori, Worley, Turner, Jackson, Guthrie, Neal, Boswell, Herron, Leeper, Moore, Pendleton, Shaughnessy, Jones, Kerr, McGaha, Palmer, Seum, Stivers, Robinson, Denton, Harris, Mongiardo, Rhoads, Karem, Tapp, Stine, Thayer, Casebier, Westwood, Buford, Sanders, Scorsone, Saunders, Blevins
UNOFFICIAL COPY AS OF 02/28/03 03 REG. SESS. 03 RS HB 458/GA
PROPOSED AMENDMENT TO HB 458 (KY RESOURCES COUNCIL)
AN ACT relating to oil and natural gas.
Be it enacted by the General Assembly of the Commonwealth of Kentucky:
Section 1. KRS 353.500 is amended to read as follows:
It is hereby declared to be the public policy of this Commonwealth to foster conservation of all mineral resources, to encourage exploration for such resources, to protect correlative rights of land and mineral owners, to prohibit waste and unnecessary surface loss and damage and to encourage the maximum recovery of oil and gas from all deposits thereof now known and which may hereafter be discovered; and to promote safety in the operation thereof. To that end, KRS 353.500 to 353.720 is enacted and shall be liberally construed to give effect to such public policy. THE GENERAL ASSEMBLY FURTHER FINDS THAT UNREGULATED OIL AND GAS OPERATIONS CAUSE SOIL EROSION, LANDSLIDES, STREAM POLLUTION, INCREASE THE LIKELIHOOD OF FLOODS, DESTROY THE VALUE OF LAND FOR AGRICULTURAL PURPOSES, DESTROY AESTHETIC VALUES, COUNTERACT EFFORTS FOR THE CONSERVATION OF SOIL, WATER AND OTHER NATURAL RESOURCES, DESTROY OR IMPAIR THE PROPERTY RIGHTS OF CITIZENS, CREATE FIRE OR EXPLOSION HAZARDS, AND IN GENERAL CREATE HAZARDS DANGEROUS TO LIFE AND PROPERTY, SO AS TO CONSTITUTE AN IMMINENT AND INORDINATE PERIL TO THE WELFARE OF THE COMMONWEALTH. THE GENERAL ASSEMBLY FURTHER FINDS THAT LANDS THAT HAVE BEEN SUBJECTED TO OIL AND GAS OPERATIONS AND HAVE NOT BEEN RECLAIMED AND REHABILITATED IN ACCORDANCE WITH MODERN STANDARDS CONSTITUTE THE AFORMENTIONED PERILS TO THE WELFARE OF THE COMMONWEALTH. THE GENERAL ASSEMBLY FURTHER FINDS THAT THERE ARE WIDE VARIATIONS IN THE CIRCUMSTANCES AND CONDITIONS SURROUNDING AND ARISING OUT OF THE OIL AND GAS OPERATIONS DUE PRIMARILY TO DIFFERENCE IN TOPOGRAPHICAL AND GEOLOGICAL CONDITIONS, AND BY REASON THEREOF IT IS NECESSARY, IN ORDER TO PROVIDE THE MOST EFFECTIVE, BENEFICIAL AND EQUITABLE SOLUTION TO THE PROBLEM, THAT A BROAD DISCRETION BE VESTED IN THE AUTHORITY DESIGNATED TO ADMINISTER AND ENFORCE THE REGULATORY PROVISIONS ENACTED BY THE GENERAL ASSEMBLY. IT IS THE PURPOSE OF THIS CHAPTER TO PROVIDE SUCH REGULATION AND CONTROL OF OIL AND GAS OPERATIONS AS TO MINIMIZE OR PREVENT INJURIOUS EFFECTS ON THE PEOPLE AND RESOURCES OF THE COMMONWEALTH. TO THAT END THE DEPARTMENT IS DIRECTED TO RIGIDLY ENFORCE THIS CHAPTER AND TO ADOPT WHATEVER ADMINISTRATIVE REGULATIONS ARE FOUND NECESSARY TO ACCOMPLISH THE PURPOSE OF THIS CHAPTER. FURTHER, [t]he General Assembly finds that governmental responsibility for regulating all aspects of oil and gas exploration, production, development, gathering, and transmission SHOULD REST [
rests] with state government and hereby directs the department to take all actions necessary to preserve and exercise the Commonwealth's authority in a manner consistent with KRS Chapter 353 and to the exclusion of all other nonstate governmental entities and agencies, except as provided in KRS Chapter 100. THUS, ANY ORDINANCES AND RESOLUTIONS BY NONSTATE GOVENMENTAL ENTITES AND AGENCIES THAT ARE INCONSISTENT WITH A PERMITTING OR ENVIRONMENTAL PERFORMANCE STANDARD ADOPTED UNDER THIS CHAPTER SHALL BE DEEMED SUPERCEDED. Nothing in this section shall be construed as limiting the rights of local governmental units to regulate the use of streets, highways, and rights-of-way.
Explanation: The oil and gas industry has represented that "all they want is what coal has – a broad preemption of local government." But in reading KRS 350.020, where the local regulation of coal is pre-empted, it is clear that the oil and gas industry chose only the language overriding local government but none of the language directing the state agency to adopt regulations to protect the public and the environment of the state. This amendment gives the oil and gas industry all of the language applicable to the coal industry, including the responsibility.
A NEW SECTION OF KRS 353.500 TO 720 IS CREATED TO READ;
(1) THE DEPARTMENT OF MINES AND MINERALS IS HEREBY AUTHORIZED AND DIRECTED TO PREPARE, DEVELOP AND PROMULGATE A COMPREHENSIVE REGULATORY PROGRAM TO PREVENT OR MINIMIZE THE ADVERSE ENVIRONMENTAL EFFECTS OF OIL AND GAS OPERATIONS ON THE LAND AND WATER RESOURCES OF THE COMMONWWEALTH. TO THAT END, THE DEPARTMENT SHALL INCLUDE IN THE REGULATORY PROGRAM:
(a) ENVIRONMENTAL PERFORMANCE STANDARDS TO PREVENT OR MINIMIZE THE ADVERSE ENVIRONMENTAL EFFECTS OF ALL ASPECTS OF OIL AND GAS EXPLROATION, PRODUCTION, DEVELOPMENT, GATHERING AND TRANSMISSION ON THE LAND AND WATER RESOURCES OF THE COMMONWEALTH;
(b) PROCEDURES COMPARABLE TO THOSE PROVIDED UNDER KRS 350.456(2)(c) FOR PUBLIC PARTICIPATION IN PROCEEDINGS UNDER THIS CHAPTER;
(c) A REQUIREMENT THAT THOSE PERSONS WISHING TO ENGAGE IN OIL OR GAS EXPLORATION, PRODUCTION, DEVELOPMENT, GATHERING AND TRANSMISSION OBTAIN A PERMIT FROM THE DEPARTMENT AND INCLUDE A PLAN DEMONSTRATING HOW THE ENVIRONMENTAL PERFORMANCE STANDARDS WILL BE MET DURING OPERATIONS AND AFTER RECLAMATION, AND PROVIDING A PERFORMANCE BOND IN AN AMOUNT AND FORM DEEMED SUFFICIENT TO ASSURE COMPLETION OF ALL RECLAMATION OBLIGATIONS UNDER THIS CHAPTER.
Explanation: Since the oil and gas industry wants what the coal industry has, i.e. a comprehensive state program in lieu of county programs, it is appropriate that they be held to the same comprehensive controls that the coal industry has at the state level. This new section tracks portions of KRS 350.465 and directly applies key concepts – bonding, performance standards, public participation, bonding of reclamation obligations, from the coal regulatory program mandated by the legislature, KRS 350.465. The following section is drawn from KRS 350.085 relating to coal, and provides that certain areas are off-limits to oil and gas development, and provides for denial of permits under certain circumstances.
A NEW SECTION OF KRS 353.500 TO 353.720 TO READ AS FOLLOWS:
(1) SUBJECT TO VALID EXISTING RIGHTS, NO OIL OR GAS EXPLORATION, DEVELOPMENT, GATHERING OR TRANSMISSION SHALL BE PERMITTED WITHIN THREE HUNDRED (300) FEET FROM ANY OCCUPIED DWELLING UNLESS WAIVED BY THE OWNER, NOR WITHIN THREE HUNDRED (300) FEET OF ANY PUBLIC BUILDING, SCHOOL, CHURCH, COMMUNITY, OR INSTITUTIONAL BUILDING, PUBLIC PARK, OR WITHIN ONE HUNDRED (100) FEET OF A CEMETERY. THE DEPARTMENT SHALL NOT ISSUE A PERMIT IF IT FINDS THAT THE OPERATION WILL CONSTITUTE A HAZARD TO OR DO PHYSICAL DAMAGE TO A DWELLING HOUSE, PUBLIC BUILDING, SCHOOL, CHURCH, CEMETERY, COMMERCIAL OR INSTITUTIONAL BUILDING, PUBLIC ROAD, STREAM, LAKE, OR OTHER PUBLIC BUILDINGS. THE CABINET SHALL DELETE THE AREAS FROM THE PERMIT APPLICATION OR OPERATION.
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