805 KAR 1:170. Content of the operations and reclamation proposal; form on which the proposal is filed.
RELATES TO: KRS 353.520, 353.570, 353.590, 353.5901, 353.595, 353.597
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 proposal applicable to all tracts on which there has been a complete severance of the ownership of the oil and gas from the ownership of the surface to be disturbed. This administrative regulation specifies the content of the operations and reclamation proposal, creates the form on which that proposal is to be filed, and provides for the form on which well transfers are indicated.
Section 1. Definitions. In addition to those set out in KRS 353.510, the following definitions shall apply to this administrative regulation:
(1) "Cross drain" means an open ditch, constructed across the roadway, to carry off road surface water and which is not intended to replace culverts or prohibit vehicular traffic.
(2) "Diversion ditch" means a channel or ridge constructed across a slope for diverting surface runoff.
(3) "Filter strip" means a natural vegetative strip, left undisturbed, between the disturbed construction area and a water course, and which acts as a buffer area to catch sediment before it enters the water course.
(4) "Final reclamation" means the date on which the operator has completed his drilling operations at the well site, has plugged the well and has performed all obligations described in the operations and reclamation proposal.
Section 2. (1) The operations and reclamation proposal shall be filed on Form ED-10, entitled "Plan to Prevent Erosion of and Sedimentation from a Well Site".
(2) In addition to the requirements set out in KRS 353.5901, the following information shall be set out on Form ED-10:
(a) The operator's and surface owner's names, addresses and telephone numbers, the county in which the well is proposed to be drilled, and the well number;
(b) A listing or description of fertilizers and soil amendments and seed or trees to be planted for each affected area requiring revegetation treatment and the types and amounts per acre of seed and trees to be planted; and
(c) A detailed drawing 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 following requirements:
1. The surface owner's tract(s) shall be identified on the drawing, with the name of the surface owner if not listed on the legend, which drawing shall also indicate the acreage to be disturbed;
2. The drawing may be made over an enlarged section of the United States Geological Survey (USGS) 1:24000 topographic map and may be enlarged to approximately 1"=400' and be submitted on an eight and one-half (8 1/2) inch by fourteen (14) inches sheet, using the symbols set out on Form ED-10.
3. The drawing 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.
(3) Signatory sections for the operator and surface owner shall be completed on Form ED-10 in the following manner:
(a) The name and title, if any, of the operator shall be indicated and his signature notarized, which signature shall be either that of an officer of the company or of some other person who holds a duly recorded power of attorney to execute documents, a copy of which power of attorney shall be filed with the division. If the prospective operator is an individual, the signatory shall be in the same name as the applicant's or a power of attorney to execute documents shall be submitted to the division if the signatory is someone other than the applicant;
(b) The surface owner's name shall be indicated and his signature notarized if he approves of the operations and reclamation proposal, 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 execute Form ED-10, the operator shall file a written petition for mediation, together with the following, at the time the application for permit is filed, in accordance with KRS 353.5901:
(1) A copy of the certified mail receipt verifying that the operations and reclamation proposal, the statement required in KRS 353.5901(2)(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 proposal and the attachments enclosed in the envelope mailed to the surface owner shall also be included.
(2) 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, which 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. A copy of the notice of intended activity and request for surface owner information shall be included when the operator files his application for permit and shall include:
(a) The name and address of the operator;
(b) A brief description of the intended activity as set out in the operations and reclamation proposal;
(c) The surface owner must respond to this notice within fifteen (15) days of the second publication in the newspaper; and
(d) A statement of where interested persons may obtain additional information as to the operator's intended activity.
Section 4. Mediation of Dispute. (1) The surface owner may file with the division a request for mediation at any time after he has received from the operator the proposed operations and reclamation proposal, 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(2)(b).
(2) If the surface owner does not file his mediation fee within the time and in the manner required in the Notice of Request for Mediation, he 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 proposal.
(3) The mediator shall not settle damage claims or make any determinations regarding them in his report. However, 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 which has the least adverse surface impact.
(4) If the operator withdraws his 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. (1) The construction of the well site, including roads, pits, tanks, lines and other areas disturbed, shall be performed by the operator in accordance with the operations and reclamation proposal. All cuts and fills shall have side slopes that are stable for the soil or fill material involved. The vertical grades shall be as low as reasonably practicable and compatible with topography.
(2) 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 allow access by the operator without causing unreasonable settlement of the roadbed or slides of the cut slopes, and provide that maintenance in accordance with the operations and reclamation proposal;
(b) Establish drainage to adequately accept runoff from access roads, the well site and other areas in a manner which prevents unreasonable interference with the surface owner’s property, roads, farming operations, and buildings, and establish that drainage in accordance with the operations and reclamation proposal;
(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; however, 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. (1) The operator shall provide written notice to the division when final reclamation and plugging have been completed.
(2) The bond required in KRS 353.590(5) shall not be released until a division inspector has 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 has filed a report to the director documenting that the following have occurred:
(a) 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;
(b) A diverse and effective permanent vegetative cover has been established; and
(c) 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 located on a severed minerals tract and for which an approved operations and reclamation proposal 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 Form ED-13, "Well Transfer";
(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 he has received from the transferring operator a copy of Form ED-10 and that he 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 executed Form ED-13, applicable fee, and the letter of the successor operator's agreement to accept responsibility for reclamation in the manner set forth on Form ED-10; and
(e) Provide the surface owner of record with a copy of form ED-13 when he submits it 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 when the well is transferred.
Section 8. 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 proposal. If the operator elects to submit this agreement, it shall be submitted at the time of filing 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 proposal 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 by submitting a letter to the director describing the need for that extension; if the director concludes that the request is reasonable and that an extension of time will not violate the requirements of this administrative regulation or applicable statutes, he may grant the request for extension of time.
(4) The operator's bond may be forfeited to the department's oil and gas well plugging fund, pursuant to KRS 353.590(7), if he 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, is subject to the penalties described in KRS 353.991.
Section 10. Material Incorporated by Reference. (1) The following material is incorporated by reference:
(a) Form ED-10, "Plan to Prevent Erosion of and Sedimentation from a Well Site", (February 14, 1997 Edition), Division of Oil and Gas; and
(b) Form ED-13, "Well Transfer", (April 16, 1990 Edition), Division of Oil and Gas.
(2) These forms may be obtained from, examined, or copied at the Kentucky Department for Natural Resources, 1025 Capital Center Drive, Suite 201, P.O. Box 2244, 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.)