805 KAR 1:170. Content of the operations and reclamation plan.

 

      RELATES TO: KRS 353.180, 353.510, 353.520, 353.561 – 353.564, 353.590, 353.5901, 353.592, 353.595, 353.597, 353.651, 353.652, 353.6601 – 353.6606, 353.730, 353.737, 353.991

      STATUTORY AUTHORITY: KRS 353.540, 353.550, 353.5901, 353.670

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 353.5901(1) requires a well operator to submit to the Department for Natural Resources an operations and reclamation plan. This administrative regulation establishes the content of the operations and reclamation plan, establishes the form on which that plan is to be filed, and establishes the form on which well transfers are indicated.

 

      Section 1. Definitions. (1) "Best management practices" or "BMPs" is defined by KRS 353.510(28).

      (2) "Final reclamation" means the date on which the operator has completed drilling operations at the well site, has plugged the well, and has performed all obligations described in the operations and reclamation plan.

      (3) "Wellsite boundary" means the area of disturbance by an operator, excluding access roads, to drill an oil or gas well.

 

      Section 2. (1) The operations and reclamation plan shall be filed on Operations and Reclamation Plan, Form ED-10.

      (2) In addition to the requirements set out in KRS 353.5901, the following information shall be submitted on Form ED-10:

      (a)1. The operator's and surface owner's names, addresses, and telephone numbers;

      2. The county in which the well is proposed to be drilled; and

      3. The well number;

      (b)1. A listing or description of fertilizers and soil amendments and seed mixes or trees to be planted as established in the table in this subparagraph.

RECOMMENDED HERBACEOUS MIXTURES

FOR REVEGETATION

Note: A species enclosed in parentheses may be substituted for the species to the left. Its seeding rate is enclosed in parentheses.

Species Mixture

Seeding Rate

(Pounds/acre

PLS)

Spring - February 15 to May 15

1. Orchardgrass

10

White or Ladino clover

2

Red clover

6

2. Orchardgrass

10

White or Ladino clover

1

Red clover

4

Kobe lespedeza

10

3. Orchardgrass

10

Birdsfoot trefoil (Alfalfa)

8 (15)

Red clover

6

4. 31 Tall fescue

20

5. Wheat (Spring oats)

25 (32)

Switchgrass

10

Indiangrass

10

Big bluestem

5

Little bluestem

5

Birdsfoot trefoil

6

Except for mixture 5, add one (1) of the following quick cover species to the selected permanent spring seeding mixture:

Wheat (before April 15)

30

Spring oats (before April 15)

32

Balbo rye (before April 15)

30

Perennial ryegrass

10

Annual ryegrass

5

Weeping lovegrass (after April 1)

2

Summer - May 15 to August 1

Orchardgrass

10

Kobe lespedeza

15

Red clover

4

White clover (Birdsfoot trefoil)

1 (6)

Alfalfa

12

Add one (1) of the following quick cover species to the permanent summer seeding mixture:

Sorghum

20

Foxtail (German) millet

12

Japanese millet

15

Soybeans

40

Cowpeas

40

Pearl millet

10

31 Tall fescue

20

Fall - August 1 to October 1

1. Orchardgrass

10

White or Ladino clover

2

Red clover

6

2. Orchardgrass

10

Alfalfa (Birdsfoot trefoil)

15 (8)

Red clover

6

3. 31 Tall fescue

20

4. Deertongue

12

Birdsfoot trefoil

8

Red clover

6

Add one (1) of the following quick cover species to the selected permanent fall seeding mixture:

Winter wheat

30

Balbo rye or Winter rye

30

Winter oats

32

Perennial ryegrass

10

Annual ryegrass

5

Mixtures for Wet or Poorly Drained Areas and Pond Borders

Spring - February 15 to May 15

Japanese millet

10

Redtop (Reed canarygrass)

3 (15)

Alsike clover

4

31 Tall fescue

20

Common annual lespedeza (quick cover species)

10

Fall - August 1 to October 1

Redtop

3

Reed canarygrass

15

Alsike clover

6

31 Tall fescue

20

Common annual lespedeza (quick cover species)

10

Mixture for Areas to be Stocked With Woody Plants

Spring or Fall Seeding

Redtop

3

Perennial ryegrass

5

Birdsfoot trefoil (Appalow lespedeza)

10 (20)

Foxtail millet (quick cover species)

5

If both Appalow lespedeza and birdsfoot trefoil are used, cut their seeding rates in half.

      2. The requirements in subparagraph 1. of this paragraph shall apply for each affected area requiring revegetation treatment; and

      (c) A detailed map of the road, well location, and proposed area of disturbance, which shall be in sufficient detail to allow ready identification of surface features and which shall satisfy the requirements established in subparagraphs 1. through 4. of this paragraph.

      1.a. The surface owner's tract shall be identified on the map, with the name of the surface owner if not listed on the legend.

      b. The map shall indicate the acreage to be disturbed.

      2. The map may be made over an enlarged section of the United States Geological Survey (USGS) 1:24000 topographic map, or an equivalent format, and shall be:

      a. Enlarged to 1"=400'; and

      b. Submitted on a minimum of an eight and one-half (8 1/2) inch by fourteen (14) inches sheet, using the symbols established on Form ED-10.

      3. The map shall have a legend with the operator's and surface owner's names not listed on the map, the scale of the map, the well name and number, and the lease name. Within 500 feet of the permitted wellsite boundary and 100 feet of the well site access road centerline, the map shall show:

      a. The location of all features listed on the legend of form ED-10;

      b. All water bodies; and

      c. If reasonably ascertainable, public utility infrastructure.

      4. The map shall show the drainage pattern on and away from the area to be affected, including the direction of flow, proposed constructed drainways, natural drainways to be used for drainage, and the streams or tributaries to receive discharges from the proposed operation.

      (3) A signature of the surface owner shall be obtained in instances of a complete severance of the ownership of the oil and gas from the ownership of the surface to be disturbed. Signatory sections for the operator and surface owner shall be completed on Form ED-10 pursuant to paragraphs (a) and (b) of this subsection.

      (a) The name and title, if any, of the operator shall be indicated and his or her signature notarized.

      1.a. The signature shall be either that of an officer of the company or of a person who holds a duly recorded power of attorney to execute documents.

      b. A copy of the power of attorney shall be filed with the division.

      2. If the prospective operator is an individual, the signatory shall be in the same name as the applicant's. If someone other than the applicant signs the form, the signatory shall hold a duly recorded power of attorney.

      (b) The surface owner's name shall be indicated and his or her signature notarized if he or she approves of the operations and reclamation plan, together with any attachments submitted with it.

 

      Section 3. Unsigned Reclamation Forms. If the owner of the surface of the severed minerals tract is unwilling or for some other reason has failed to submit Form ED-10, the operator shall file:

      (1) A written petition for mediation; and

      (2) The items established in paragraphs (a) and (b) of this subsection.

      (a) A copy of the certified mail receipt verifying that the operations and reclamation plan, the statement required in KRS 353.5901(4)(b), and the plat were mailed to and received by the surface owner or, if not received, the original or a copy of the unclaimed envelope. A copy of the operations and reclamation plan and the attachments enclosed in the envelope mailed to the surface owner shall also be included.

      (b) If the surface owner cannot be reached at his last known address of record and certified mail is returned as undeliverable or unknown, the operator shall publish a notice of intended activity, together with a request for information on the whereabouts of the surface owner.

      1. The publication shall be made two (2) consecutive times in a local newspaper in the county where the proposed well is located and once in a newspaper of general circulation.

      2. A copy of the notice of intended activity and request for surface owner information shall be included with the operator's application for permit and shall include:

      a. The name and address of the operator;

      b. A brief description of the intended activity as established in the operations and reclamation plan; and

      c. A statement of where interested persons may obtain additional information as to the operator's intended activity.

      3. The surface owner shall respond to the notice established in this paragraph.

 

      Section 4. Mediation of Dispute. (1) The surface owner may file with the division a request for mediation after receiving from the operator the proposed operations and reclamation plan, but only after the operator has filed his request for mediation and not later than the time set forth in the Notice of Request for Mediation provided by the department and mailed to the surface owner. The surface owner's request to participate in mediation shall include the mediation fee, in accordance with KRS 353.5901(6), or a request for waiver of the fee.

      (2) Contents of a request for fee waiver. The request for waiver of the mediation fee shall include:

      (a) A brief statement of facts underlying the request for a determination that the individual is financially unable to pay the mediation fee required by KRS 353.5901(6); and

      (b)1. Documentation that the individual is receiving or has been deemed eligible to receive public assistance; or

      2. An affidavit, subject to penalties for perjury, establishing:

      a. The applicant's individual income;

      b. The applicant’s household income;

      c. Property owned;

      d. Outstanding obligations;

      e. The number and age of dependents; and

      f. A copy of his or her most recent Kentucky and federal income tax returns.

      (3) Waiver determination.

      (a) Within thirty (30) days of filing of the petition, the mediator shall issue a determination accepting or denying the request for fee waiver. If the fee waiver is denied, the applicant shall be informed in writing and the applicant shall be given thirty (30) days from the mailing of the mediator’s waiver denial to submit the mediation fee to the department, or the surface owner shall be deemed to have failed to satisfy the statutory requirements applicable to mediation and a report shall be issued pursuant to subsection (4) of this section.

      (b) The mediator’s waiver determination shall not be subject to appeal.

      (c) In considering the request for fee waiver, the mediator shall consider the statement and affidavit submitted by the surface owner and consult the Federal Poverty Guidelines in effect upon the date the request is mailed.

      (d) The mediator shall waive the mediation fee for any surface owner whose household income is at or below 100 percent of the Federal Poverty Guidelines.

      (e) The mediator shall waive the mediation fee for any surface owner whose household income exceeds 100 percent of the Federal Poverty Guidelines if the mediator determines that the surface owner has demonstrated financial inability to pay the fee.

      (f) It shall be presumed that the surface owner has the financial ability to pay the mediation fee if that person:

      1. Is not receiving, or is not eligible to receive, public assistance payments upon the date the affidavit is submitted; or

      2. Owns more than one (1) motor vehicle.

      (4) If the surface owner does not file the mediation fee within the time and in the manner required in the Notice of Request for Mediation, the surface owner shall be deemed to have failed to satisfy the statutory requirements applicable to mediation. The mediator shall file a report noting the failure and recommend the acceptance of the operator's operations and reclamation plan.

      (5)(a) The mediator shall not settle damage claims or make any determinations regarding damage claims in the report.

      (b) Information presented by the operator or surface owner as to costs incurred by either party as a result of the projected drilling and the loss of minerals or surface damage may be utilized by the mediator in recommending the placement of roads, pits, or other construction and reclamation activities in a manner that has the least adverse surface impact.

      (6) If the operator withdraws his or her application for a permit to drill, deepen, or reopen a well after receipt by the division of the surface owner’s mediation fee, that fee shall be refunded to the surface owner.

 

      Section 5. Construction, Reclamation, and Maintenance. (1) Pre-construction planning shall be performed to design access roads, wellsite, and pits along existing topography to minimize erosion and identify locations for sediment control practices and devices in accordance with the operations and reclamation plan.

      (2) Construction activities shall incorporate BMPs for erosion and sedimentation control on all disturbed areas.

      (a) All cuts and fills shall have side slopes that are stable for the soil or fill material utilized.

      (b) A wellsite shall be constructed on a stable base.

      (c) If practicable, pits shall be constructed in solid ground on the cut or highwall side of the wellsites, and in accordance with 401 KAR 5:090, Section 9(5)(a).

      1. A disturbed area shall be graded and stabilized so that soil erosion, surface disturbances, and stream sedimentation is minimized utilizing best management practices, in accordance with the approved operations and reclamation plan.

      2. If practicable, all topsoil present in the area to be disturbed shall be removed and segregated for redistribution during reclamation.

      3. Temporary erosion control measures shall be implemented during construction of the road to minimize sedimentation and erosion until permanent control measures including seeded and mulched road ditches can be established.

      (3) If the well produces and the site is kept open for long-term use for well servicing and for oil and gas removal, the operator shall:

      (a) Maintain access roads in a manner as to:

      1. Allow access by the operator without causing unreasonable settlement of the roadbed or slides of the cut slopes; and

      2. Provide that maintenance shall be in accordance with the operations and reclamation plan;

      (b)1. Establish drainage to adequately accept runoff from access roads, the well site, and other areas in a manner that shall prevent unreasonable interference with the surface owner’s property, roads, farming operations, and buildings; and

      2. Establish drainage in accordance with the operations and reclamation plan; and

      (c) Repair access roads, the well site area, and pits damaged by events as floods, landslides, or excessive settlement of the embankment as soon as practicable after the damage has occurred. The operator shall not be responsible for damage attributable to another party's use of the access road not relating to the drilling, construction, or operation of the well by the operator.

 

      Section 6. Site closure. (1) The department shall consider a wellsite closed after:

      (a) All surface production facilities have been removed;

      (b) The well has been plugged under direction of the department;

      (c) Written notice has been provided by the operator to the division that final reclamation and site closure has been completed and the reclamation work pursuant to the operations and reclamation plan; and

      (d) The cabinet has verified that the reclamation work complies with the operations and reclamation plan in the approved permit package.

      (2) The bond required in KRS 353.590(8) and (9) shall not be released until a division inspector has:

      (a) Made an inspection of the well site one (1) year after the date of the letter of notification from the operator of final reclamation and plugging; and

      (b) Filed a report to the director documenting that the following have occurred:

      1. All areas disturbed by the operator have been secured in a manner to prevent runoff, sedimentation, or settlement of the roadway, sliding of cut slopes or any fill material;

      2. A diverse and effective permanent vegetative cover has been established; and

      3. Any matters relating to settlement, inadequate vegetative cover, or erosion have been corrected.

 

      Section 7. Transfer of Wells having Existing Reclamation Plans. (1) Prior to transferring a well for which an approved operations and reclamation plan is on file with the division, the operator shall:

      (a) Provide the successor operator a copy of the approved reclamation forms and attachments on file with the division before signing Well Transfer Form ED-13;

      (b) Advise the successor operator of any reclamation responsibility the transferring operator had with regard to the well and related surface disturbance;

      (c) Secure from the successor operator a letter indicating that the operator has received from the transferring operator a copy of Form ED-10 and that he or she is willing to accept responsibility for the reclamation of the well site and other surface disturbances related to the operation of the well;

      (d) Submit to the division the completed Form ED-13, applicable fee, and the letter of the successor operator's agreement to accept responsibility for reclamation in the manner established on Form ED-10; and

      (e) Provide the surface owner of record with a copy of form ED-13 upon submission to the division.

      (2) The division shall not transfer the well until the requirements of this section are satisfied and shall advise the transferring and successor operators in writing upon transfer of the well.

      (3)(a) The transferee of a well shall assume all obligations in accordance with the terms of the permit and this section upon transfer regardless of whether the transferor commenced the activity and regardless of whether the transferor failed to properly perform the transferor’s obligations in accordance with the permit and this chapter. The transfer of the permit shall relieve the transferor of any future obligations under the terms of the permit or 805 KAR Chapter 1, but shall not relieve the transferor of any civil penalties that arose from violations occurring prior to the transfer.

 

      Section 8. (1) If a well is to be drilled and completed on federal lands, the director shall accept a copy of a surface use reclamation agreement between the well operator and the federal agency in lieu of the operations and reclamation plan.

      (2) If the operator elects to submit this agreement, it shall be submitted with the application for permit to drill a well.

 

      Section 9. (1) If a field inspection indicates there is noncompliance with the approved operations and reclamation plan or the requirements of Section 6 of this administrative regulation, a written notice of violation describing the noncompliance shall be given to the operator, together with a statement of the action required to correct the noncompliance.

      (2) The written notice of violation shall allow the operator up to forty-five (45) days to correct the violation.

      (3) An operator may file for an extension of time to correct a violation. A request for an extension of time shall be submitted via a letter to the director describing the need for that extension. If the director concludes that the reasons for the request are beyond the operator's control and that an extension of time will not violate the requirements of this administrative regulation or applicable statutes, the director shall grant the request for extension of time.

      (4) The operator's bond shall be forfeited to the department's oil and gas well plugging fund, pursuant to KRS 353.590(10), if the operator fails to make required corrections.

      (5) An operator who, after hearing, is determined by the department to be in noncompliance with any section of this administrative regulation, or who fails to abate any noncompliance of the approved operations and reclamation plan, shall be subject to the penalties described in KRS 353.991.

 

      Section 10. Incorporation by Reference. (1) The following material is incorporated by reference:

      (a) "Operations and Reclamation Plan", ED-10, April 2015; and

(b) Form ED-13, "Well Transfer", April 16, 1990 edition, Division of Oil and Gas.

      (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Oil and Gas, 1025 Capital Center Drive, Frankfort, Kentucky 40602-2244, Monday through Friday, 8 a.m. to 4:30 p.m. (23 Ky.R. 3655; Am. 4182; 24 Ky.R. 90; 365; eff. 7-9-97; TAm eff. 8-9-2007; 41 Ky.R. 2366; 42 Ky.R. 58; eff. 9-4-2015.)