PRIOR PRINTER'S NOS. 364, 1087 PRINTER'S NO. 3714
No. 329 Session of 1989
INTRODUCED BY GEORGE, FEE, FREEMAN, WOZNIAK, LUCYK, BOWLEY,
BROUJOS, MICHLOVIC, BELARDI, LEVDANSKY, DeWEESE, KUKOVICH,
SERAFINI, MICOZZIE, TIGUE, BELFANTI, STABACK, SAURMAN,
BILLOW, CAWLEY, PISTELLA, LAUGHLIN, SALOOM, MELIO, RITTER,
LANGTRY, GIGLIOTTI AND MRKONIC, FEBRUARY 8, 1989
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
JUNE 13, 1990
AN ACT
1 Amending the act of May 31, 1945 (P.L.1198, No.418), entitled,
2 as amended, "An act providing for the conservation and
3 improvement of land affected in connection with surface
4 mining; regulating such mining; providing for the
5 establishment of an Emergency Bond Fund for anthracite deep
6 mine operators; and providing penalties," further providing
7 for proceedings involving contamination or diminution of
8 water supplies.
9 The General Assembly of the Commonwealth of Pennsylvania
10 hereby enacts as follows:
11 Section 1. Section 4.2(f) of the act of May 31, 1945
12 (P.L.1198, No.418), known as the Surface Mining Conservation and
13 Reclamation Act, amended October 10, 1980 (P.L.835, No.155), is
14 amended to read:
15 Section 4.2. General Rule Making; Health and Safety.--* * *
16 (f) (1) Any surface mining operator who affects a public or
17 private water supply by contamination or diminution shall
18 restore or replace the affected supply with an alternate source
19 of water adequate in quantity and quality for the purposes
1 served by the supply. If any operator shall fail to comply with
2 this provision, the secretary may issue such orders to the
3 operator as are necessary to assure compliance.
4 (2) Any operator aggrieved by the secretary's order issued <--
5 pursuant to this subsection shall have the right within thirty
6 (30) days of receipt of such order to appeal to the
7 Environmental Hearing Board. Hearings under this subsection and
8 any subsequent appeal shall be in accordance with section
9 1921(a) of the act of April 9, 1929 (P.L.177, No.175), known as
10 "The Administrative Code of 1929," and 2 Pa.C.S. (relating to
11 administrative law and procedure).
12 (3) If the secretary finds:
13 (i) that immediate replacement of an affected water supply
14 used for potable or domestic needs is required to protect health
15 and safety; and
16 (ii) that the operator has appealed or failed to comply with
17 an order issued pursuant to this subsection;
18 the secretary may, in his discretion, restore or replace the
19 affected water supply with an alternate source of water
20 utilizing moneys from the surface mining conservation and
21 reclamation fund. The secretary shall recover the costs of
22 restoration or replacement, including costs incurred for design
23 and construction of facilities, from the responsible operator or
24 operators. Any such costs recovered shall be deposited in the
25 fund.
26 (2) IT SHALL BE PRESUMED, AS A MATTER OF LAW, THAT ANY <--
27 SURFACE MINING OPERATOR OR OWNER IS RESPONSIBLE, WITHOUT PROOF
28 OF FAULT, NEGLIGENCE OR CAUSATION, FOR ALL POLLUTION, EXCEPT
29 BACTERIOLOGICAL CONTAMINATION, OR DIMINUTION OF PUBLIC OR
30 PRIVATE WATER SUPPLIES, WITHIN ONE THOUSAND LINEAR FEET OF THE
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1 BOUNDARIES OF THE LAND AFFECTED OR ACREAGE ASSIGNED TO THE
2 SURFACE MINING OPERATION UNDER SECTION 3.1 BY A PERMIT ISSUED BY
3 THE DEPARTMENT. THERE SHALL BE ONLY FIVE DEFENSES TO THE
4 PRESUMPTIONS OF LIABILITY PROVIDED HEREIN. ANY SURFACE MINING
5 OPERATOR OR OWNER MUST AFFIRMATIVELY PROVE BY A PREPONDERANCE OF
6 EVIDENCE THAT ONE OF THE FOLLOWING CONDITIONS EXIST:
7 (I) THE LANDOWNER OR WATER SUPPLY COMPANY REFUSED TO ALLOW
8 THE SURFACE MINING OPERATOR OR OWNER ACCESS TO CONDUCT A SURVEY
9 PRIOR TO COMMENCING SURFACE MINING ACTIVITIES.
10 (II) THE WATER SUPPLY IS NOT WITHIN ONE THOUSAND LINEAR FEET
11 OF THE BOUNDARIES OF THE LAND AFFECTED OR THE ACREAGE ASSIGNED
12 TO THE SURFACE MINING OPERATION UNDER SECTION 3.1 BY A PERMIT
13 ISSUED BY THE DEPARTMENT.
14 (III) THE POLLUTION OR DIMINUTION EXISTED PRIOR TO THE
15 SURFACE MINING ACTIVITIES AS DETERMINED BY A SURVEY CONDUCTED
16 PRIOR TO COMMENCING SURFACE MINING ACTIVITIES.
17 (IV) THE POLLUTION OR DIMINUTION OCCURRED AS A RESULT OF
18 SOME CAUSE OTHER THAN THE SURFACE MINING ACTIVITIES.
19 (V) THE LANDOWNER, WATER SUPPLY USER OR WATER SUPPLY COMPANY
20 REFUSES TO ALLOW THE SURFACE MINING OPERATOR OR OWNER ACCESS TO
21 DETERMINE THE CAUSE OF POLLUTION OR DIMINUTION OR TO REPLACE OR
22 RESTORE THE WATER SUPPLY.
23 (3) IF THE SECRETARY FINDS THAT IMMEDIATE REPLACEMENT OF AN
24 AFFECTED WATER SUPPLY USED FOR POTABLE OR DOMESTIC NEEDS IS
25 REQUIRED TO PROTECT HEALTH AND SAFETY, AND THAT THE OPERATOR OR
26 OWNER HAS APPEALED OR FAILED TO COMPLY WITH AN ORDER ISSUED
27 PURSUANT TO THIS SUBSECTION, THE SECRETARY MAY RESTORE OR
28 REPLACE THE AFFECTED WATER SUPPLY WITH AN ALTERNATE SOURCE OF
29 WATER UTILIZING MONEYS FROM THE SURFACE MINING CONSERVATION AND
30 RECLAMATION FUND. THE SECRETARY SHALL RECOVER THE COSTS OF
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1 RESTORATION OR REPLACEMENT, INCLUDING COSTS INCURRED FOR DESIGN
2 AND CONSTRUCTION OF FACILITIES, FROM THE RESPONSIBLE OPERATORS
3 OR OWNERS. ANY SUCH COSTS RECOVERED SHALL BE DEPOSITED IN THE
4 SURFACE MINING CONSERVATION AND RECLAMATION FUND.
5 (4) ANY OPERATOR OR OWNER AGGRIEVED BY THE SECRETARY'S ORDER
6 ISSUED PURSUANT TO THIS SUBSECTION SHALL HAVE THE RIGHT WITHIN
7 THIRTY DAYS OF RECEIPT OF SUCH ORDER TO APPEAL TO THE
8 ENVIRONMENTAL HEARING BOARD. THE SECRETARY'S ORDER, WHEN
9 APPEALED BY ANY OPERATOR OR OWNER, SHALL NOT BE USED TO BLOCK
10 THE ISSUANCE OF NEW PERMITS OR THE RELEASE OF BONDS WHEN A STAGE
11 OF RECLAMATION WORK IS COMPLETED. HEARINGS UNDER THIS SUBSECTION
12 SHALL BE IN ACCORDANCE WITH THE ACT OF JULY 13, 1988 (P.L.530,
13 NO.94), KNOWN AS THE "ENVIRONMENTAL HEARING BOARD ACT," AND 2
14 PA.C.S. CH. 5 SUBCH. A (RELATING TO PRACTICE AND PROCEDURE OF
15 COMMONWEALTH AGENCIES) AND CH. 7, SUBCH. A (RELATING TO JUDICIAL
16 REVIEW OF COMMONWEALTH AGENCY ACTION).
17 (5) A SURFACE MINING OPERATOR OR OWNER WHO PROVIDES A
18 SUCCESSFUL DEFENSE TO THE PRESUMPTION OF LIABILITY SHALL BE
19 ENTITLED TO RECOVER THE COSTS INCURRED, INCLUDING, BUT NOT
20 LIMITED TO, THE COSTS OF TEMPORARY WATER SUPPLY, DESIGN,
21 CONSTRUCTION, RESTORATION OR REPLACEMENT COSTS, ATTORNEY FEES
22 AND EXPERT WITNESS FEES FROM THE DEPARTMENT.
23 (6) NOTHING HEREIN SHALL PREVENT ANY LANDOWNER OR WATER
24 SUPPLY COMPANY WHO CLAIMS POLLUTION OR DIMINUTION OF A WATER
25 SUPPLY FROM SEEKING ANY OTHER REMEDY THAT MAY BE PROVIDED FOR AT
26 LAW OR IN EQUITY.
27 (7) A SURFACE MINING OPERATION CONDUCTED UNDER A SURFACE
28 MINING PERMIT ISSUED BY THE DEPARTMENT BEFORE THE EFFECTIVE DATE
29 OF THIS ACT SHALL NOT BE SUBJECT TO THE PROVISIONS OF CLAUSES
30 (2), (3), (4), (5) AND (6) OF THIS SUBSECTION, BUT SHALL BE
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1 SUBJECT TO CLAUSE (1) OF THIS SUBSECTION.
2 * * *
3 Section 2. This act shall take effect in 60 days.
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