I just returned from Frankfort within the past hour and am writing these comments in skeletal form, and will supplement them later. Specific comments follow:
805 KAR 9:010
Kentucky?s coalbed methane statute is among the most progressive in the nation, in recognizing that the goal of developing the coalbed methane resource must go hand-in-hand with environmental protection and that any development must protect and preserve the environment. KRS 349.005(1)(d).
In order to give effect to the requirement of KRS 349.150(2) to replace water supplies where damage results from the operation of CBM wells, the prohibition in KRS 349.035(2)(d) against unlawful damage to underground, fresh or mineral water supplies, and the requirement of KRS 349.040(3)(d) to submit a groundwater protection plan where the methane well will be within1/2 mile of a water supply well being used for residential or domestic purposes, certain baseline characterization and data collection is essential.
The proposed regulation has a few areas of needed clarification. First, under Section 2, the collection of data should be commensurate with the radius identified by the legislature as being of concern, i.e. ½ mile. Absent such data collection concerning existing use, quality, extent and flow characteristics of the groundwater, implementation of the performance standards of the regulations and law is impossible.
Second, the use of groundwater supply in Section 2(1)(e) is unclear. That qualitative and quantitative information should be collected for all domestic and residential wells within ½ mile, but the regulation appears to limit the data collection to any well supplying the CBM operation.
Third, the baseline information under Section 2(2) should be submitted to the agency, not merely retained by the operator, and should be provided for the life of the operation and not merely the duration of the well use.
Next, oil and grease should be added as a parameter, to allow detection of cross-contamination of water with hydrocarbons.
In Section 4, only non-producing fresh water zones are protected. Initially, all groundwater zones, including mineral zones, are required to be isolated and protected under the statute, not merely those with a TDS concentration that would make them eligible as USDWs under the SDWA. Additionally, it is unclear whether nonproducing means that the aquifer cannot yield fresh water, in which case it may be a saturated rock strata but not an aquifer, or whether that means that fresh water zones used for CBM production or into which there is injection to produce CBM are not protected. In this case, if the TDS content is below 10,000, any injection into the producing freshwater zone is to be regulated under the UIC program.
805 KAR 9:020
In Section 1, industries should be replaced with operations.
In Section 3, 150 feet should be replaced with a distance equal to that which is identified in the statute as being of concern because of potential subsurface migration (i.e. 500 feet from dwellings). To be avoided is CBM production that drives methane into the vadose zone or through preferential pathways created by utility conduits underground which adversely affect homes due to concentrations of methane. The spacing and property line distance requirements recognize this possibility, and homes should be entitled to no less protection than other property owners CBM deposits.
In Section 3, it is also unclear where the distance is measured at any point in the well bore, or at well surface. The former should be the case, to avoid horizontal drilling at closer distances.
The proposed Notice form should specifically include a requirement to list adjoining neighbors to whom notice is required to be served under KRS 349.035(2)(d), a copy of the notice, and when service was effected.
The information form should require the applicant to disclose and describe whether the ownership of the property or right to conduct CBM operations is currently subject to litigation.
Thanks for your consideration of these comments. I will send additional concern in the next day, and understand that those late comments will not received affirmative written consideration. I also incorporate by reference the comments I provided on the draft regulations on October 14, 2004.