805 KAR 1:170. Content of the operations and reclamation plan[proposal; form on which the proposal is filed]

Link to law: http://www.lrc.ky.gov/kar/805/001/170.htm
Published: 2015

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      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.)