PRINTER'S NO. 3029
No. 1800 Session of 2003
INTRODUCED BY LEVDANSKY, GEORGE, NAILOR, MUNDY, B. SMITH,
WOJNAROSKI, JOSEPHS, VITALI, YOUNGBLOOD, CURRY, WALKO,
FABRIZIO, KOTIK, SCRIMENTI, GERGELY, LEACH, HORSEY, FRANKEL,
PISTELLA, KIRKLAND AND PRESTON, DECEMBER 8, 2003
REFERRED TO COMMITTEE ON ENVIRONMENTAL RESOURCES AND ENERGY,
DECEMBER 8, 2003
AN ACT
1 Amending the act of April 27, 1966 (1st Sp.Sess., P.L.31, No.1),
2 entitled, as amended, "An act to protect the public health,
3 welfare and safety by regulating the mining of bituminous
4 coal; declaring the existence of a public interest in the
5 support of surface structures; providing a remedy for the
6 restoration or replacement of water supplies affected by
7 underground mining; providing a remedy for the restoration or
8 replacement or compensation for surface structures damaged by
9 underground mining; providing standards for the prevention of
10 hazards to human safety and material damage to certain
11 structures; requiring permits, and in certain circumstances
12 bonds, for the mining of bituminous coal; providing for the
13 filing of maps or plans with recorders of deeds; providing
14 for the giving of notice of mining operations to political
15 subdivisions and surface landowners of record; requiring mine
16 inspectors to accompany municipal officers and their agents
17 on inspection trips; granting powers to public officers and
18 affected property owners to enforce the act; requiring
19 grantors to certify as to whether any structures on the lands
20 conveyed are entitled to support from the underlying coal and
21 grantees to sign an admission of a warning of the possible
22 lack of any such right of support; requiring grantors to
23 provide notice of the existence of voluntary agreements for
24 the restoration or replacement of water supplies or for the
25 repair or compensation for structural damage; imposing duties
26 on the Department of Environmental Resources for the
27 compilation and analysis of data; and imposing liability for
28 violation of the act," further providing for title of act,
29 for legislative findings and declaration of policy; adding
30 definitions; further providing for permit and application,
31 for restoration of replacement of water supplies affected by
1 underground mining, for procedures for securing restoration
2 or replacement of affected water supplies, for voluntary
3 agreement, for restoration or compensation for structures
4 damaged by underground mining, for procedure for securing
5 repair and compensation for damages to structures caused by
6 underground mining, for voluntary agreements for repair or
7 compensation for damages to structures caused by underground
8 mining and for repair of damage or satisfaction of claims;
9 providing for protection requirements for public roads, for
10 procedure for securing compensation for damage to public
11 roads caused by underground mining and for voluntary
12 agreements for compensation for damages to public roads
13 caused by underground mining; further providing for repair of
14 damage or satisfaction of claims, revocation or suspension of
15 permit, bond or collateral, for prevention of hazards to
16 human safety and limitation of degree of damage to certain
17 buildings, for legislative oversight, for compilation and
18 analysis of data; and making editorial changes.
19 The General Assembly of the Commonwealth of Pennsylvania
20 hereby enacts as follows:
21 Section 1. The title of the act of April 27, 1966 (1st
22 Sp.Sess., P.L.31, No.1), known as The Bituminous Mine Subsidence
23 and Land Conservation Act, amended June 22, 1994 (P.L.357,
24 No.54), is amended to read:
25 AN ACT
26 To protect the public health, welfare and safety by regulating
27 the mining of bituminous coal; declaring the existence of a
28 public interest in the support of surface structures;
29 providing a remedy for the restoration or replacement of
30 water supplies affected by underground mining; providing a
31 remedy for the restoration or replacement or compensation for
32 surface structures damaged by underground mining; providing
33 standards for the prevention of hazards to human safety and
34 material damage to certain structures; requiring permits, and
35 in certain circumstances bonds, for the mining of bituminous
36 coal; providing for the filing of maps or plans with
37 recorders of deeds; providing for the giving of notice of
38 mining operations to political subdivisions and surface
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1 landowners of record; requiring mine inspectors to accompany
2 municipal officers and their agents on inspection trips;
3 granting powers to public officers and affected property
4 owners to enforce the act; requiring grantors to certify as
5 to whether any structures on the lands conveyed are entitled
6 to support from the underlying coal and grantees to sign an
7 admission of a warning of the possible lack of any such right
8 of support; requiring grantors to provide notice of the
9 existence of voluntary agreements for the restoration or
10 replacement of water supplies or for the repair or
11 compensation for structural damage; imposing duties on the
12 Department of Environmental [Resources] Protection for the
13 compilation and analysis of data; and imposing liability for
14 violation of the act.
15 Section 2. Section 3 of the act, amended June 22, 1994
16 (P.L.357, No.54), is amended to read:
17 Section 3. Legislative findings; declaration of policy.--(a)
18 It is hereby determined by the General Assembly of Pennsylvania
19 and declared as a matter of legislative findings that:
20 (1) Present mine subsidence legislation and coal mining laws
21 have failed to protect the public interest in Pennsylvania in
22 preserving our land.
23 (2) Damage from mine subsidence has seriously impeded land
24 development of the Commonwealth.
25 (3) Damage from mine subsidence has caused a very clear and
26 present danger to the health, safety and welfare of the people
27 of Pennsylvania.
28 (4) Damage by subsidence erodes the tax base of the affected
29 municipalities.
30 (5) Coal and related industries and their continued
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1 operation are important to the economic welfare and growth of
2 the Commonwealth.
3 (6) In the past, owners of surface structures have not in
4 many instances received adequate notice or knowledge regarding
5 subsurface support, or lack thereof, for surface structures, and
6 therefore the State must exercise its police powers for the
7 protection of the structures covered herein.
8 (7) In order to prevent the occurrence of such state of
9 affairs in the future, the deed notice provisions relating to
10 such subsurface support, or lack thereof to a person desiring to
11 erect a surface structure after the effective date of this act,
12 must be emphasized and strengthened and it is necessary to make
13 available to those persons desiring to erect a surface structure
14 procedures whereby adequate support of such structure can be
15 acquired.
16 (8) Historic properties within Pennsylvania are
17 irreplaceable resources for future generations, but they have
18 not received adequate protection from damage due to mine
19 subsidence.
20 (9) Preservation of surface water resources, including
21 wetlands, during and after coal extraction is essential to the
22 public interest.
23 (10) Millions of tax dollars are invested annually in the
24 construction and maintenance of roads and bridges in this
25 Commonwealth. This public infrastructure needs to be protected
26 for future generations.
27 (b) The Pennsylvania General Assembly therefore declares it
28 to be the policy of the Commonwealth of Pennsylvania that:
29 (1) The protection of surface structures and better land
30 utilization are of utmost importance to Pennsylvania.
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1 (2) Damage to surface structures and the land supporting
2 them caused by mine subsidence is against the public interest
3 and may adversely affect the health, safety and welfare of our
4 citizens.
5 (3) The prevention or restoration of damage from mine
6 subsidence is recognized as being related to the economic future
7 and well-being of Pennsylvania.
8 (4) The preservation within the Commonwealth of surface
9 structures and the land supporting them is necessary for the
10 safety and welfare of the people.
11 (5) It is the intent of this act to harmonize the protection
12 of surface structures and the land supporting them and the
13 continued growth and development of the bituminous coal industry
14 in the Commonwealth.
15 (6) [It is necessary to develop an adequate remedy for the
16 restoration and replacement of water supplies affected by
17 underground mining.] It is the intent of this act to provide
18 protection of water resources, including the restoration and
19 replacement of water supplies affected by underground mining, so
20 that these resources are available for utilization in connection
21 with agricultural, commercial, recreational and residential uses
22 of the surface during and after coal extraction.
23 (7) It is necessary to develop a remedy for the restoration
24 or replacement of or compensation for surface structures damaged
25 by underground mining.
26 (8) It is necessary to provide a method whereby surface
27 structures erected after the effective date of this act may be
28 protected from damage arising from mine subsidence.
29 (9) It is necessary to protect historic properties from
30 material damage to their historic fabric arising from subsidence
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1 related to mine operation.
2 (10) It is necessary to protect State and local roads from
3 subsidence related to mine operation.
4 Section 3. The act is amended by adding a section to read:
5 Section 3.1. Definitions.--The following words and phrases
6 when used in this act shall have the meanings given to them in
7 this section unless the context clearly indicates otherwise:
8 "Department." The Department of Environmental Protection of
9 the Commonwealth.
10 "Perennial stream." A body of water that flows in a channel
11 or bed composed primarily of substrates associated with flowing
12 waters and is capable, in the absence of pollution or other
13 manmade stream disturbances, of supporting a benthic
14 macroinvertebrate community composed of two or more recognizable
15 taxonomic groups of organisms which:
16 (1) are large enough to be seen by the unaided eye;
17 (2) can be retained by a United States Standard No. 30
18 sieve with 28 meshes per inch and 0.595 millimeter openings;
19 and
20 (3) can live at least part of their life cycles within
21 or upon available substrates in a body of water or water
22 transport system.
23 "Public road." Any road or appurtenant structure constructed
24 or maintained by the Commonwealth or a municipality.
25 "Secretary." The Secretary of Environmental Protection of
26 the Commonwealth.
27 "Shall." When used in any section of this act is to be
28 interpreted as imposing a mandatory duty on the Department of
29 Environmental Protection or the permittee or both. The term
30 shall not be construed as being directory or discretionary.
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1 Section 4. Section 5(a) and (e) of the act, amended October
2 10, 1980 (P.L.874, No.156), are amended to read:
3 Section 5. Permit; application; map or plan; bond or other
4 security; filing; general rulemaking authority; prevention of
5 damage; mine stability; maintenance of use and value of lands.--
6 (a) Before any bituminous coal mine subject to the provisions
7 of this act is opened, reopened, or continued in operation, the
8 owner, operator, lessor, lessee, general manager, superintendent
9 or other person in charge of or having supervision over such
10 mine or mining operation shall apply to the [Department of
11 Environmental Resources] department, on a form prepared and
12 furnished by the department, for a permit for each separate
13 bituminous coal mine or mining operation. As a part of such
14 application for a permit the applicant shall furnish, in
15 duplicate, a map or plan of a scale and in a manner in
16 accordance with rules and regulations of the [Department of
17 Environmental Resources] department showing the location of the
18 mine or mining operation, the extent to which mining operations
19 presently have been completed, and the extent to which mining
20 operations will be conducted under the permit being requested.
21 Such map or plan shall show the boundaries of the area of
22 surface land overlying the mine or mining operation, the
23 location and/or designation of all structures in place on the
24 effective date of this act which overlie the proposed mine or
25 mining operation, the name of the record owner or owners of said
26 surface structures, the location of all bodies of water, rivers
27 and streams, roads and railroads, and the political subdivision
28 and county in which said structures are located. Such map or
29 plan shall include, in addition to the information specified
30 above, such information on the character of the mining
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1 operation, overburden, rock strata, proximity of and conditions
2 in overlying or underlying coal seams and other geological
3 conditions as the department, by rules and regulations, shall
4 direct. The department shall have the power to require the
5 updating of such maps from time to time as it shall prescribe by
6 rule and regulation. The map or plan must set forth a detailed
7 description of the manner, if any, by which the applicant
8 proposes to support the surface structures overlying the
9 bituminous mine or mining operation. Upon receipt of such
10 application in proper form the department shall cause a permit
11 to be issued or reissued if, in its opinion, the application
12 discloses that sufficient support will be provided for the
13 protected structures and that the operation will comply with the
14 provisions of this act and the rules and regulations issued
15 thereunder. All permits issued under this act shall contain such
16 terms and shall be issued for such duration as the department
17 may prescribe.
18 * * *
19 (e) (1) An operator of a coal mine subject to the
20 provisions of this act shall adopt measures and shall describe
21 to the department in his permit application measures that he
22 will adopt to [prevent subsidence causing material damage to the
23 extent technologically and economically feasible, to] maximize
24 mine stability, and to maintain the value and [reasonable]
25 reasonably foreseeable use of such surface land[: Provided,
26 however, That nothing].
27 (2) The demonstration to be made in the application shall
28 explain and provide technological and economic analysis of the
29 impacts of subsidence on each surface structure overlying the
30 mine which may be materially damaged by the mining. It shall
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1 also include, but not be limited to:
2 (i) An alternatives analysis which will demonstrate whether
3 there are alternative methods of mining, mine layout and/or
4 engineering which would minimize damage to dwellings and other
5 surface structures.
6 (ii) A structure specific plan for the mitigation of mine
7 subsidence related damage for each structure of the type
8 identified in section 5.4(a) which lies within the zone of
9 presumptive liability described in section 5.4(c).
10 (3) Each proposed subsidence damage mitigation plan shall be
11 reviewed and approved by the department as adequate to prevent
12 material damage to that structure prior to implementation
13 thereof by the operator. The department shall employ registered
14 professional structural engineers for this purpose. For the
15 purposes of this paragraph, "material damage" shall mean any
16 damage to a dwelling, building, barn or other surface structure
17 which could exceed five thousand dollars ($5,000).
18 (4) An applicant for a permit under this act shall also
19 demonstrate to the department in the applicant's permit
20 application that the proposed mining will be planned and
21 conducted in a manner which will maintain and protect existing
22 and designated surface water uses and the degree of water
23 quality necessary to protect these existing uses. The
24 Environmental Quality Board or the department may provide
25 additional protection to perennial streams.
26 (5) Nothing in this subsection shall be construed to
27 prohibit planned subsidence in a predictable and controlled
28 manner or the standard method of room and pillar mining so long
29 as the operator complies with the requirements of this section.
30 * * *
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1 Section 5. Sections 5.1, 5.2, 5.3, 5.4, 5.5(a), (b) and (d)
2 and 5.6(c) of the act, amended or added June 22, 1994 (P.L.357,
3 No.54), are amended to read:
4 Section 5.1. Restoration or replacement of water supplies
5 affected by underground mining.--(a) [(1)] After the effective
6 date of this section, any mine operator who, as a result of
7 underground mining operations, affects a public or private water
8 supply by contamination, diminution or interruption shall
9 restore or replace the affected supply with an alternate source
10 which [adequately services in quantity and quality] is
11 equivalent in quantity and adequate in quality to serve the
12 premining uses of the supply or any reasonably foreseeable uses
13 of the supply.
14 [(2)] (a.1) A restored or replacement water supply shall be
15 deemed adequate:
16 (1) where it differs in quality from the premining supply,
17 providing it meets standards set forth in the act of May 1, 1984
18 (P.L.206, No.43), known as the "Pennsylvania Safe Drinking Water
19 Act," or is comparable to the premining supply where that supply
20 did not meet such standards[.]; and
21 (2) when it produces the same or greater volume of water as
22 existed prior to mining.
23 If an operator fails to comply with this provision, the
24 [Secretary of Environmental Resources] secretary shall issue
25 such orders to the operator as are necessary to assure
26 compliance.
27 [(3)] (a.2) For the purposes of this section, the term
28 "water supply" shall include any existing source of water used
29 for domestic, commercial, industrial or recreational purposes or
30 for agricultural uses, including use or consumption of water to
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1 maintain the health and productivity of animals used or to be
2 used in agricultural production and the [watering] irrigation of
3 lands on a periodic or permanent basis by a constructed or
4 manufactured system in place [on the effective date of this act]
5 at the time of mining to provide [irrigation] water for
6 agricultural production of plants and crops at levels of
7 productivity or yield historically experienced by such plants or
8 crops within a particular geographic area, or which serves any
9 public building or any noncommercial structure customarily used
10 by the public, including, but not limited to, churches, schools
11 and hospitals.
12 [(b) A mine operator shall not be liable to restore or
13 replace a water supply under the provisions of this section if a
14 claim of contamination, diminution or interruption is made more
15 than two years after the supply has been adversely affected.]
16 Section 5.2. Procedures for securing restoration or
17 replacement of affected water supplies; duties of [Department of
18 Environmental Resources] department.--(a) (1) Whenever a
19 landowner or water user experiences contamination, diminution or
20 interruption of a water supply which is believed to have
21 occurred as a result of underground coal mining operations, that
22 landowner or water user shall notify the mine operator who shall
23 promptly notify the department thereof and with reasonable
24 diligence investigate the water loss.
25 (2) Where the presumption of subsection (c) applies and the
26 user is without a readily available alternate source, the
27 operator shall provide a temporary water supply within twenty-
28 four hours of being contacted by the landowner or water user.
29 (3) If a temporary water supply is not provided within
30 twenty-four hours, the [Department of Environmental Resources]
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1 department, after notice by the landowner or water user, shall
2 order the operator to provide temporary water within twenty-four
3 hours. The operator shall notify the department of any claim of
4 contamination, diminution or interruption made to it by a
5 landowner or water user and its disposition.
6 (b) (1) If the affected water supply has not been restored
7 or an alternate source has not been provided by the operator or
8 if an operator ceases to provide an alternate source, the
9 landowner or water user may so notify the department and request
10 that an investigation be conducted.
11 (2) Within ten days of such notification, the department
12 shall investigate any such claim and shall, within [forty-five]
13 thirty days following notification, make a determination in
14 writing of whether the contamination, diminution or interruption
15 was caused by the underground mining operation and so notify all
16 affected parties. If it finds causation, [it] within forty-five
17 days of receipt of the notification required by subsection (a),
18 the department shall issue [such orders] an order to the mine
19 operator [as are necessary to assure compliance with this
20 section. Such orders may include orders requiring the temporary
21 replacement of a water supply where it is determined that the
22 contamination, diminution or interruption may be of limited
23 duration, orders requiring the provision of immediate temporary
24 water to the landowner or orders requiring the provision of a
25 permanent alternate source where the contamination, diminution
26 or interruption does not abate within three years of the date on
27 which the supply was adversely affected.] requiring replacement
28 of the water supply.
29 (3) Temporary replacement of a water supply shall be
30 permitted for:
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1 (i) no longer than ninety days after the department has
2 determined that there is contamination, diminution or
3 interruption of the supply caused by the underground operation;
4 or
5 (ii) an additional two hundred seventy days when the
6 department determines that because water supply replacement is
7 to occur through connection to a public water supply such
8 additional time is necessary.
9 The permanent replacement supply shall be provided more promptly
10 where reasonably possible.
11 (c) In any determination or proceeding under this section,
12 it shall be presumed that an underground mine operator is
13 responsible for the contamination, diminution or interruption of
14 a water supply that is within [an area above the mine determined
15 by projecting a thirty-five degree angle from the vertical from
16 the outside of any coal removal area] two thousand five hundred
17 feet horizontally of any underground mining activity. The mine
18 operator may successfully rebut the presumption by affirmatively
19 proving that the mine operator solicited access [was denied] to
20 the property on which the supply is located to conduct premining
21 and postmining surveys of the quality and quantity of the supply
22 but was denied such access, that the mine operator notified the
23 department thereof and the department thereafter served notice
24 upon the landowner by certified mail or personal service, which
25 notice identified all of the rights established by sections 5.1
26 and 5.3 and this section[,] and that access [had been denied and
27 the landowner failed to provide or authorize access within ten
28 days after receipt thereof.] continued to be denied to the mine
29 operator or the department for this survey work for thirty days
30 after receipt by the landowner of the department's notice. In
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1 addition to identifying the rights established in sections 5.1
2 and 5.3 and this section, the notice by the department shall
3 also advise the landowner receiving such notice that the failure
4 to provide or authorize access may preclude the replacement of
5 the water supply, in the event the water supply is diminished,
6 contaminated or interrupted.
7 (d) Unless the presumption contained in subsection (c)
8 applies, a landowner, the department or any affected user
9 asserting contamination, diminution or interruption shall have
10 the burden to affirmatively prove that underground mining
11 activity caused the contamination, diminution or interruption.
12 Wherever a mine operator, upon request, has been denied access
13 to conduct a premining survey and [the mine operator thereafter
14 served] notice was served upon the landowner [by certified mail
15 or personal service,] as provided in subsection (c) which notice
16 identified the rights established by sections 5.1 and 5.3 and
17 this section, [was denied access] and the landowner failed to
18 provide or authorize access [within ten days after receipt
19 thereof,] as provided in subsection (c), then such affirmative
20 proof [shall] may include premining baseline data, provided by
21 the landowner or the department, relative to the affected water
22 supply.
23 (e) A mine operator shall be relieved of liability for
24 affecting a public or private water supply by contamination,
25 diminution or interruption by affirmatively proving [one] either
26 of the following defenses:
27 (1) The contamination, diminution or interruption existed
28 prior to the mining activity as determined by a premining
29 survey.
30 [(2) The contamination, diminution or interruption occurred
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1 more than three years after mining activity occurred.]
2 (3) The contamination, diminution or interruption occurred
3 solely as [the] a result of some cause other than the mining
4 activity.
5 When either of these defenses is asserted, it must be shown by
6 the mine operator that the premining survey of a water supply's
7 quantity and quality were completed before its mining activities
8 occurred within twenty-five hundred feet of that water supply.
9 (f) Any mine operator who obtains water samples in a
10 premining or postmining survey shall obtain sufficient numbers
11 of samples over a sufficient period of time to show any seasonal
12 fluctuations in quantity and quality, shall utilize a certified
13 laboratory to analyze such samples and shall submit copies of
14 the results of [such analysis] all analyses, as well as the
15 results of any quantitative analysis, to the department and to
16 the landowner within [thirty] ten days of their receipt. Nothing
17 contained herein shall be construed as prohibiting a landowner
18 or water user from utilizing an independent certified laboratory
19 to sample and analyze the water supply.
20 (g) If an affected water supply is not restored or
21 reestablished or a permanent alternate source is not provided
22 within [three years, the mine operator may be relieved of
23 further responsibility by entering into a written agreement
24 providing compensation acceptable to the landowner. If no
25 agreement is reached, the mine operator, at the option of the
26 landowner, shall:
27 (1) purchase the property for a sum equal to its fair market
28 value immediately prior to the time the water supply was
29 affected; or
30 (2) make a one-time payment equal to the difference between
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1 the property's fair market value immediately prior to the time
2 the water supply was affected and at the time payment is made;
3 whereupon the mine operator shall be relieved of further
4 obligation regarding contamination, diminution or interruption
5 of the affected water supply under this act. Any measures taken
6 under sections 5.1 and 5.3 and this section to relieve a mine
7 operator of further obligation regarding contamination,
8 diminution or interruption of an affected water supply shall not
9 be deemed to bar a subsequent purchaser of the land on which the
10 affected water supply was located or any water user on such land
11 from invoking rights under this section for contamination,
12 diminution or interruption of a water supply resulting from
13 subsequent mining activity other than that contemplated by the
14 mine plan in effect at the time the original supply was
15 affected.
16 (h) Prior to entering into an agreement with the mine
17 operator pursuant to subsection (g), the landowner may submit a
18 written request to the department asking that the department
19 review the operator's finding that an affected water supply
20 cannot reasonably be restored or that a permanent alternate
21 source, as described in subsection (i), cannot reasonably be
22 provided. The department shall provide its opinion to the
23 landowner within sixty days of receiving the landowner's
24 request. The department's opinion shall be advisory only,
25 including for purposes of assisting the landowner in selecting
26 the optional compensation authorized under subsection (g). The
27 department's opinion shall not prevent the landowner from
28 entering into an agreement with the mine operator pursuant to
29 subsection (g), and such opinion shall not serve as the basis
30 for any action by the department against the mine operator or
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1 create any cause of action in a third party, provided the
2 operator otherwise complies with subsection (g).] ninety days,
3 the department shall order the mine operator to replace the
4 water supply within ninety days unless replacement is by
5 connection to a public water supply in which case the department
6 shall order replacement in a period not to exceed one year.
7 (i) For purposes of this section, a permanent alternate
8 source shall include any well, spring, municipal water supply
9 system or other supply [approved by the department which is
10 adequate in quantity, quality and of reasonable cost] equivalent
11 in quantity to the premining supply and adequate in quality to
12 serve the premining uses of the affected water supply and the
13 reasonably projected future uses of that supply.
14 (j) (1) The department shall require an operator to
15 describe in his permit application how water supplies [will]
16 shall be replaced. [Nothing contained herein shall be construed
17 as authorizing the department to require a mine operator to
18 provide a replacement water supply prior to mining as a
19 condition of securing a permit to conduct underground coal
20 mining.]
21 (2) The operator shall, for each water supply which either
22 overlies the permit area or is within two thousand five hundred
23 feet of the permit boundary, describe specifically and with
24 particularity in the permit application, the manner in which
25 that water supply can be replaced within ninety days of being
26 affected by mining if it shall be contaminated, diminished or
27 interrupted. The permit application shall conclusively
28 demonstrate the availability of replacement options including,
29 but not limited to, a hookup to a public water supply, drilling
30 a well into a fresh water aquifer containing water of adequate
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1 quality and equivalent quantity to be used for a replacement
2 supply, development of a spring in an area not affected by the
3 mining. The permit application shall include any and all such
4 other information as may be necessary for the department to
5 determine that the water supply affected can actually be
6 replaced within ninety days of being adversely affected by the
7 mining, that such a replacement is feasible and practical, and
8 that the water for the replacement is available at the location
9 where the mining occurs. If the operator cannot conclusively
10 demonstrate each such replacement, the permit shall not issue.
11 (k) Any landowner, water user or mine operator aggrieved by
12 an order or determination of the department issued under this
13 section shall have the right to appeal such order to the
14 Environmental Hearing Board within thirty days of receipt of the
15 order.
16 Section 5.3. Voluntary agreement; restoration or replacement
17 of water; deed recital.--(a) Nothing contained in this act
18 shall prohibit the mine operator and landowner at any time after
19 the effective date of this section from voluntarily entering
20 into an agreement establishing the manner and means by which an
21 affected water supply is to be restored or an alternate supply
22 is to be provided [or providing fair compensation for such
23 contamination, diminution or interruption] as required by
24 section 5.2(g). Any release contained in such an agreement shall
25 only be valid in releasing the operator from liability for
26 affecting a public or private water supply by contamination,
27 diminution or interruption if all of the following apply:
28 (1) It clearly states [what] all of the landowner's rights
29 [are] in regard thereto as established by this act.
30 (2) The landowner expressly acknowledges their release for
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1 the consideration rendered.
2 (3) The contamination, diminution or interruption of the
3 water supply occurs as a result of the mining contemplated by
4 the agreement.
5 (4) The term of the release does not exceed thirty-five
6 years.
7 (5) Notwithstanding the provisions of an agreement entered
8 into under this section, in the event that an affected water
9 supply cannot reasonably be restored or that a permanent
10 alternate source, as described in section 5.2(i), cannot
11 reasonably be provided within [three years of the date on which
12 the supply was adversely affected] the time period specified in
13 section 5.2(g), the landowner shall have the option of
14 proceeding pursuant to section 5.2(g) [and (h). Any amounts
15 previously paid to the landowner by the mine operator pursuant
16 to an agreement entered into under this section that were not
17 used by the landowner to restore or replace the affected water
18 supply or to secure a permanent alternate source, as described
19 in section 5.2(i), shall be deducted from the compensation
20 determined to be due pursuant to section 5.2(g).] to compel
21 replacement.
22 (b) In every deed for the conveyance of property for which
23 an agreement executed pursuant to subsection (a) is effective at
24 the time of transfer, the grantor shall include in the deed a
25 recital of the agreement and any release contained therein.
26 (c) Nothing contained in this act shall prevent any
27 landowner or water user who claims contamination, diminution or
28 interruption of a water supply from seeking any other remedy
29 that may be provided [at] in law or [in] equity. In any
30 proceedings in pursuit of a remedy other than as provided
20030H1800B3029 - 19 -
1 herein, the [provisions of this act shall not apply and the
2 party or parties against whom liability is sought to be imposed
3 may assert in defense any rights or waivers arising from
4 provisions contained in deeds, leases or agreements pertaining
5 to mining rights or coal ownership on the property in question.]
6 mine operator against whom liability is sought to be imposed may
7 assert only those defenses specifically set forth in this act
8 and waives, as a privilege of being granted a permit to conduct
9 underground mining activities in this Commonwealth, any defense
10 based on any right or waiver arising from provisions contained
11 in deeds, leases or agreements pertaining to mining rights or
12 coal ownership on the property in question. Any defense or
13 waiver of rights contained in any severance deed shall be null
14 and void as a defense to water contamination, diminution or
15 interruption or for damages to the water supply's owner or user
16 arising from the water supply's contamination, diminution or
17 interruption, by an operator granted a permit under this act.
18 Section 5.4. Restoration or compensation for structures
19 damaged by underground mining.--(a) Whenever underground mining
20 operations conducted under this act cause damage to any of the
21 following surface buildings overlying or in the proximity of the
22 mine:
23 (1) any building which is accessible to the public,
24 including, but not limited to, commercial, industrial and
25 recreational buildings and all permanently affixed structures
26 appurtenant thereto;
27 (2) any noncommercial buildings customarily used by the
28 public, including, but not limited to, schools, churches and
29 hospitals;
30 (3) dwellings used or intended to be used for human
20030H1800B3029 - 20 -
1 habitation and permanently affixed appurtenant structures or
2 improvements in place [on the effective date of this section or
3 on the date of first publication of the application for a Mine
4 Activity Permit or a five-year renewal thereof for the
5 operations in question and within the boundary of the entire
6 mine as depicted in said application] when mining occurs; or
7 (4) the following agricultural structures: all barns and
8 silos and all permanently affixed structures of five hundred or
9 more square feet in area that are used for raising livestock,
10 poultry or agricultural products, for storage of animal waste or
11 for the processing or retail marketing of agricultural products
12 produced on the farm on which such structures are located;
13 the operator of such coal mine shall repair such damage or
14 compensate the owner of such building for the reasonable cost of
15 its repair or the reasonable cost of its replacement where the
16 damage is irreparable.
17 (a.1) The operator's duties to repair or compensate the
18 owner of any building listed within subsection (a) for the
19 reasonable cost of its repair or replacement shall include both
20 the duty to make or pay for all interim repairs to a damaged
21 structure reasonably needed to protect the health and safety of
22 the occupants and users thereof and the duty to make or pay for
23 such interim repairs to a damaged structure as are reasonably
24 needed to minimize further damage to that structure. Where the
25 operator fails to promptly make such interim repairs, the
26 building owner may have them made and the owner shall be paid
27 the cost thereof pursuant to section 5.5(d). The operator's
28 duties to repair or compensate shall also include the duty to
29 make repairs or to pay for the repair of all damages to
30 structures and the surface area surrounding same which result
20030H1800B3029 - 21 -
1 from the installation of mine subsidence mitigation measures by
2 the operator.
3 (b) For any irreparably damaged agricultural structure
4 identified in subsection (a)(4) which, at the time of damage,
5 the operator can affirmatively prove was being used for a
6 different purpose than the purpose for which such structure was
7 originally constructed, the operator, with the structure owner's
8 consent, may provide for the reasonable cost to replace the
9 damaged structure with a structure satisfying the functions and
10 purposes served by the damaged structure before such damage
11 occurred.
12 [(c) A mine operator shall not be liable to repair or
13 compensate for subsidence damage if the mine operator, upon
14 request, is denied access to the property upon which the
15 building is located to conduct premining and postmining surveys
16 of the building and surrounding property and thereafter serves]
17 (c) (1) The underground mine operator shall be presumed to
18 be responsible for any damage to structures located above the
19 mine and within an area above the mine determined by projecting
20 a thirty-five degree angle from the vertical from the outside of
21 any coal removal area. Subject to the provisions of subsection
22 (d), the mine operator may successfully rebut the presumption of
23 liability by affirmatively proving that the mine operator
24 solicited access to the property on which the structure is
25 located to conduct premining and postmining surveys of the
26 structure's condition but was denied such access; that the mine
27 operator notified the department thereof and the department
28 thereafter served notice upon the landowner by certified mail or
29 personal service, which notice [identifies] identified all of
30 the rights established by sections 5.5 and 5.6 and this
20030H1800B3029 - 22 -
1 section[, the mine operator was denied access and the landowner
2 failed to provide or authorize access within ten days after
3 receipt thereof.]; and that access continued to be denied to the
4 mine operator or the department for this survey work for thirty
5 days after receipt by the landowner of the department's notice.
6 (2) In addition to identifying all of the rights established
7 in sections 5.5 and 5.6 and this section, the notice by the
8 department shall also advise the land owner receiving such
9 notice that the failure to provide or authorize access may
10 preclude the repair of the structure's damage, in the event the
11 structure is damaged from mining activities.
12 (3) The mine operator may be excused from its responsibility
13 to prepare and implement a mine subsidence mitigation plan for a
14 structure where it solicited access to do so but is denied
15 access, notified the department thereof and the department was
16 unable to secure it access to do so using procedures paralleling
17 those set forth in this subsection as to the premining and
18 postmining inspections.
19 (e) Unless the presumption contained in subsection (d)
20 applies, a structure owner or the department asserting that
21 damage to the structure was caused by underground mining has the
22 burden to affirmatively provide that the underground mining
23 caused the damage. Wherever a mine operator in conformance with
24 the requirements of subsection (d) has been denied access to
25 conduct a premining or postmining survey but there has been full
26 compliance with subsection (d) as to attempting to obtain such
27 access, then affirmative proof may include premining baseline
28 data provided by the structure owner or the department relative
29 to the affected structure.
30 Section 5.5. Procedure for securing repair and/or
20030H1800B3029 - 23 -
1 compensation for damage to structures caused by underground
2 mining; duties of Department of Environmental [Resources]
3 Protection.--(a) The owner of any building enumerated in
4 section 5.4(a) who believes that the removal of coal has caused
5 mine subsidence resulting in damage to such building and who
6 wishes to secure repair of or compensation for such damage shall
7 notify the mine operator[.] thereof. The mine operator shall
8 promptly notify the department of each such claim he receives.
9 If the mine operator agrees that mine subsidence damaged such
10 building, he shall cause such damage to be fully repaired or
11 compensate the owner for such damage in accordance with section
12 5.4(a) or with an agreement in accordance with section 5.6
13 reached between the parties either prior to mining or after the
14 damage has occurred.
15 (b) If the parties are unable to agree [within six months of
16 the date of notice] as to the cause of the damage or the
17 reasonable cost of repair or compensation, the owner of the
18 building may file a claim in writing with the [Department of
19 Environmental Resources] department, a copy of which shall be
20 sent to the operator. [All claims under this subsection shall be
21 filed within two years of the date damage to the building
22 occurred.]
23 * * *
24 (d) In no event shall the mine operator be liable for
25 repairs or compensation in an amount exceeding the cost of
26 replacement of the damaged structure[.] with an equivalent
27 structure. Whenever damage to a structure exceeds one thousand
28 dollars ($1,000), the mine operator shall also compensate the
29 structure's owner an amount equal to 10% of the cost of all
30 repairs which will be made to the structure for the cost in time
20030H1800B3029 - 24 -
1 and effort to the structure's owner in securing, making or
2 supervising the making of any such repairs. The occupants of a
3 damaged structure shall also be [entitled to additional payment]
4 paid for reasonable, actual expenses incurred for temporary
5 relocation, interim storage of personal property and for other
6 actual reasonable, incidental costs [agreed to by the parties or
7 approved by the department.] incurred by the structure's
8 occupants as a result of damage from mine subsidence. Where an
9 occupant of a structure engages in a business which utilizes the
10 structure, the occupant shall be compensated for increased
11 business costs, lost business profits, loss of goodwill and lost
12 business opportunities incurred by that occupant as a result of
13 the subsidence damage to the structure.
14 * * *
15 Section 5.6. Voluntary agreements for repair or compensation
16 for damages to structures caused by underground mining; deed
17 recital.--* * *
18 (c) (1) The duty created by section 5.5 to repair or
19 compensate for subsidence damage to the buildings enumerated in
20 section 5.4(a) shall be the sole and exclusive administrative
21 remedy for such damage and shall not be diminished by the
22 existence of contrary provisions in deeds, leases or agreements
23 which [relieved] relieve mine operators from such duty. [Nothing
24 herein shall impair agreements entered into after April 27,
25 1966, and prior to the effective date of this section, which,
26 for valid consideration, provide for a waiver or release of any
27 duty to repair or compensate for subsidence damage. Any such
28 waiver or release shall only be valid with respect to damage
29 resulting from the mining activity contemplated by such
30 agreement.]
20030H1800B3029 - 25 -
1 (2) Nothing contained in this act shall prevent the owner of
2 any building who claims damage thereto from subsidence from
3 seeking any other remedy that may be provided in law or equity.
4 In any proceedings in pursuit of a remedy other than as provided
5 under this act, the mine operator against whom liability is
6 sought to be imposed may assert only those defenses specifically
7 set forth in this act and waives, as a privilege of being
8 granted a permit to conduct underground mining activities in
9 this Commonwealth, any defense based on any right or waiver
10 arising from provisions contained in deeds, leases or agreements
11 pertaining to mining rights or coal ownership on the property in
12 question. Any defense or waiver of rights contained in any
13 severance deed shall be null and void as a defense to subsidence
14 damage to a building, by an operator granted a permit under this
15 act.
16 * * *
17 Section 6. The act is amended by adding sections to read:
18 Section 5.7. Protection requirements for public roads.--(a)
19 An underground mine operator shall be presumed to be financially
20 responsible for the costs of repair of any subsidence damage to
21 public roads located above the mine or within an area above the
22 mine determined by projecting a thirty-five degree angle from
23 the vertical from the outside of any coal removal area.
24 (b) The department shall develop and implement regulations
25 to prevent, minimize and repair mine subsidence damage to public
26 roads. These regulations shall include, but are not limited to,
27 specific bonds to cover the projected cost of repairing
28 undermined roads within an area above the mine determined by
29 projecting a thirty-five degree angle from the vertical from the
30 outside of any coal removal area.
20030H1800B3029 - 26 -
1 Section 5.8. Procedure for securing compensation for damage
2 to public roads caused by underground mining; duties of
3 department.--(a) The owner of any public road described in
4 section 5.7(a) who believes that the removal of coal has caused
5 mine subsidence resulting in damage to such public road and who
6 wishes to secure compensation for such damage shall notify the
7 mine operator thereof. The mine operator shall promptly notify
8 the department of each such claim the operator receives. If the
9 mine operator agrees that mine subsidence damaged the public
10 road, as claimed, the operator shall compensate the owner for
11 the damage in accordance with section 5.7(a) or with an
12 agreement in accordance with section 5.9 reached between the
13 parties either prior to mining or after the damage has occurred.
14 (b) If the parties are unable to agree as to the cause of
15 the damage or the reasonable cost of compensation, the owner of
16 the public road may file a claim in writing with the department,
17 a copy of which shall be sent to the mine operator. A claim
18 under this subsection must be filed within two years of the date
19 damage to the public road occurred or the date when the damage
20 is discovered by the owner of the public road, whichever is
21 later.
22 (c) The department shall make an investigation of a claim
23 within thirty days of receipt of the claim. The department
24 shall, within sixty days following the investigation, make a
25 determination in writing as to whether the damage was caused by
26 subsidence due to underground coal mining and, if so, the
27 reasonable cost of repairing or replacing the damaged road. If
28 the department finds the damage to be caused by mining, it shall
29 issue a written order directing the operator to compensate the
30 owner of the road.
20030H1800B3029 - 27 -
1 (d) In no event shall the mine operator be liable for
2 compensation in an amount exceeding the cost of replacement of
3 the damaged public road.
4 (e) If either the road owner or the mine operator is
5 aggrieved by an order issued by the department under this
6 section, that person shall have the right to appeal the order to
7 the Environmental Hearing Board within thirty days of receipt of
8 the order. The appeal of a mine operator shall not be considered
9 perfected unless within sixty days of the date the mine operator
10 received the department's order, the operator has deposited an
11 amount equal to the amount of compensation ordered by the
12 department in an interest-bearing escrow account administered
13 for such purposes by the department.
14 (f) If the mine operator fails to compensate for subsidence
15 damage within six months or fails to perfect an appeal of the
16 department's order directing compensation, the department shall
17 issue an order or take an action as necessary to compel
18 compliance with the requirements of this act, including, but not
19 limited to, cessation orders and permit revocation. If the mine
20 operator fails to compensate for damage after exhausting its
21 right of appeal, the department shall pay the escrow deposit
22 made with respect to the particular claim involved and accrued
23 interest to the owner of the damaged road.
24 (g) Except as provided in subsection (f), the existence of
25 unresolved claims of subsidence damage shall not be used by the
26 department as a basis for withholding permits from or suspending
27 review of permit applications submitted by a mine operator
28 against whom such claims have been made.
29 Section 5.9. Voluntary agreements for compensation for
30 damages to public roads caused by underground mining.--(a)
20030H1800B3029 - 28 -
1 Nothing contained in this act shall prohibit the mine operator
2 and the owner of the public road at any time after the effective
3 date of this section from voluntarily entering into an agreement
4 establishing the manner and means by which compensation for
5 subsidence damage is to be provided. Any release contained in
6 such an agreement shall only be valid in releasing the operator
7 from liability under this act if it clearly states what rights
8 are established by this act and the road's owner expressly
9 acknowledges the release as consideration for the alternate
10 remedies provided under this act, except that such remedies
11 shall be no less than those reasonably necessary to compensate
12 the owner of the road for the reasonable cost of its repair or
13 the reasonable cost of its replacement where the damage is
14 irreparable. Any such release shall be null and void if no
15 mining occurs for a period of thirty-five years within the coal
16 field of which the coal underlying the affected public road
17 forms a part.
18 (b) The duty created by section 5.8 to compensate for
19 subsidence damage to the public roads enumerated in section
20 5.7(a) shall not be the sole and exclusive administrative remedy
21 for such damage: Provided, further, That nothing contained in
22 this act shall prevent the owner of any public road who claims
23 damage thereto from subsidence from seeking any other remedy
24 that may be provided in law or equity. In any proceedings in
25 pursuit of a remedy other than as provided under this act, the
26 mine operator against whom liability is sought to be imposed may
27 assert only those defenses specifically set forth in this act
28 and waives, as a privilege of being granted a permit to conduct
29 underground mining activities in this Commonwealth, any defense
30 based on any right or waiver arising from provisions contained
20030H1800B3029 - 29 -
1 in deeds, leases or agreements pertaining to mining rights or
2 coal ownership on the property in question. Any defense or
3 waiver of rights contained in any severance deed shall be null
4 and void as a defense to subsidence damage to a road by an
5 operator granted a permit under this act.
6 Section 7. Section 6(b) of the act, amended June 22, 1994
7 (P.L.357, No.54), is amended to read:
8 Section 6. Repair of damage or satisfaction of claims;
9 revocation or suspension of permit; bond or collateral.--
10 (b) The department shall require the applicant to file a
11 bond in a form prescribed by the secretary payable to the
12 Commonwealth and conditioned upon the applicant's faithful
13 performance of mining or mining operations, in accordance with
14 the provisions of sections 5, 5.1, 5.2, 5.3, 5.4, 5.5 [and
15 5.6.], 5.6, 5.7, 5.8 and 5.9. Such bond shall be in [a
16 reasonable amount as determined by the department.] an amount
17 that will be adequate to cover all subsidence damage anticipated
18 by the mine operator and identified in the permit application
19 and for the term of the permit, to ensure that the mine operator
20 can repair all subsidence damage anticipated during the life of
21 the permit, as well as replace all water supplies contaminated,
22 diminished or interrupted by the subsidence. The amount of the
23 bond shall not be less than the total estimated cost of
24 repairing or of necessary replacing the anticipated damage to
25 each dwelling, structure, building or other surface feature,
26 including surface waters, which is likely to sustain damage by
27 subsidence or from subsidence mitigation measures during the
28 term of the mining operation. For each such dwelling, structure,
29 building or other surface feature, including surface waters, the
30 operator shall bear the burden of establishing the anticipated
20030H1800B3029 - 30 -
1 cost of repair or replacement. Liability under such bond shall
2 continue for the duration of the mining or mining operation, and
3 for a period of ten years thereafter or such longer period of
4 time as may be prescribed by rules and regulations promulgated
5 hereunder, at which time the bond shall become of no force and
6 effect, and it, or any cash or securities substituted for it as
7 hereinafter provided, shall be returned to the applicant. Upon
8 application of any proper party in interest, the department,
9 after due notice to any person who may be affected thereby, and
10 hearing, in accordance with the provisions of section 5(g), may
11 order the amount of said bond to be increased or reduced or may
12 excuse the permit holder from any further duty of keeping in
13 effect any bond furnished pursuant to a prior order of the
14 department and return said bond, or the securities or cash
15 posted in lieu thereof, to the permit holder, notwithstanding
16 any different provision herein respecting the duration or term
17 of said bond. Such bond shall be executed by the applicant and a
18 corporate surety licensed to do business in the Commonwealth:
19 Provided, however, That the applicant may elect to deposit cash,
20 automatically renewable irrevocable bank letters of credit which
21 may be terminated by the bank at the end of a term only upon the
22 bank giving ninety days prior written notice to the permittee
23 and the department or negotiable bonds of the United States
24 Government or the Commonwealth of Pennsylvania, the Pennsylvania
25 Turnpike Commission, the General State Authority, the State
26 Public School Building Authority, or any municipality within the
27 Commonwealth, with the department in lieu of a corporate surety.
28 The cash deposit or irrevocable letter of credit or market value
29 of such negotiable bonds shall be at least equal to the sum of
30 the bond. Where the mining operation is reasonably anticipated
20030H1800B3029 - 31 -
1 to continue for a period of at least ten years from the date of
2 application, the operator may, as an alternative, deposit
3 collateral and file a collateral bond as provided for in this
4 section according to the following phased deposit schedule. The
5 operator shall, prior to commencing operations, deposit ten
6 thousand dollars ($10,000.00) or 25% of the amount determined
7 under this subsection, whichever is greater. The operator shall
8 thereafter annually deposit 10% of the remaining bond amount for
9 ten years. Interest accumulated by such collateral shall become
10 a part of the bond. The department may require additional
11 bonding at any time to meet the intent of this subsection. The
12 collateral shall be deposited, in trust, with the State
13 Treasurer, or with a bank, selected by the department, which
14 shall act as trustee for the benefit of the Commonwealth,
15 according to rules and regulations promulgated hereunder, to
16 guarantee the operator's compliance with this act. The operator
17 shall be required to pay all costs of the trust. The collateral
18 deposit, or part thereof, shall be released of liability and
19 returned to the operator, together with a proportional share of
20 accumulated interest, upon the conditions of and pursuant to the
21 schedule for release provided for by rules and regulations
22 promulgated hereunder. In lieu of, or in addition to, the bond
23 required by this section, the department may require the
24 operator of an underground mining operation to purchase
25 subsidence insurance, as provided by the act of August 23, 1961
26 (P.L.1068, No.484), entitled, as amended, "An act to provide for
27 the creation and administration of a Coal and Clay Mine
28 Subsidence Insurance Fund within the Department of Environmental
29 Resources for the insurance of compensation for damages to
30 subscribers thereto; declaring false oaths by the subscribers to
20030H1800B3029 - 32 -
1 be misdemeanors; providing penalties for the violation thereof;
2 and making an appropriation," if the department determines that
3 the financial stability of the operator may be jeopardized by
4 future economic conditions for the benefit of all surface
5 property owners who may be affected by damage caused by
6 subsidence. The insurance coverage shall be in an amount
7 determined by the department to be sufficient to remedy any and
8 all damage. The term of this obligation shall be for the
9 duration of the mining and reclamation operation and for ten
10 years thereafter. For all other surface effects of underground
11 mining, the operator shall post a bond as required by this
12 section. The department shall, upon receipt of any such deposit
13 of cash or irrevocable letter of credit or negotiable bonds,
14 immediately place the same with the State Treasurer, whose duty
15 it shall be to receive and hold the same in the name of the
16 Commonwealth, in trust, for the purposes for which such deposit
17 is made. The State Treasurer shall at all times be responsible
18 for the custody and safekeeping of such deposits. The applicant
19 making the deposit shall be entitled from time to time to demand
20 and receive from the State Treasurer, on the written order of
21 the department, the whole or any portion of any collateral so
22 deposited, upon depositing with him, in lieu thereof, other
23 collateral of the classes herein specified having a market value
24 at least equal to the sum of the bond, and also to demand,
25 receive and recover the interest and income from said negotiable
26 bonds as the same become due and payable: Provided, however,
27 That where negotiable bonds, deposited as aforesaid, mature or
28 are called, the State Treasurer, at the request of the
29 applicant, shall convert such negotiable bonds into such other
30 negotiable bonds of the classes herein specified as may be
20030H1800B3029 - 33 -
1 designated by the applicant: And provided further, That where
2 notice of intent to terminate a letter of credit is given, the
3 department shall give the permittee thirty days written notice
4 to replace the letter of credit with other acceptable bond
5 guarantees as provided herein, and if the permittee fails to
6 replace the letter of credit within the thirty-day notification
7 period, the department shall draw upon and convert such letter
8 of credit into cash and hold it as a collateral bond guarantee.
9 The department, in its discretion, may accept a self-bond
10 from the permittee, without separate surety, if the permittee
11 demonstrates to the satisfaction of the department a history of
12 financial solvency, continuous business operation and continuous
13 efforts to achieve compliance with all United States of America
14 and Pennsylvania environmental laws, and, meets all of the
15 following requirements:
16 (1) The permittee shall be incorporated or authorized to do
17 business in Pennsylvania and shall designate an agent in
18 Pennsylvania to receive service of suits, claims, demands or
19 other legal process.
20 (2) The permittee or if the permittee does not issue
21 separate audited financial statements, its parent, shall provide
22 audited financial statements for at least its most recent three
23 fiscal years prepared by a certified public accountant in
24 accordance with generally accepted accounting principles. Upon
25 request of the permittee, the department shall maintain the
26 confidentiality of such financial statements if the same are not
27 otherwise disclosed to other government agencies or the public.
28 (3) During the last thirty-six calendar months, the
29 applicant has not defaulted in the payment of any dividend or
30 sinking fund installment or preferred stock or installment on
20030H1800B3029 - 34 -
1 any indebtedness for borrowed money or payment of rentals under
2 long-term leases or any reclamation fee payment currently due
3 under the Federal Surface Mining Control and Reclamation Act of
4 1977, 30 U.S.C. § 1232, for each ton of coal produced in the
5 Commonwealth of Pennsylvania.
6 (4) The permittee shall have been in business and operating
7 no less than ten years prior to filing of application unless the
8 permittee's existence results from a reorganization,
9 consolidation or merger involving a company with such longevity.
10 However, the permittee shall be deemed to have met this
11 requirement if it is a majority-owned subsidiary of a
12 corporation which has such a ten-year business history.
13 (5) The permittee shall have a net worth of at least six
14 times the aggregate amount of all bonds applied for by the
15 operator under this section.
16 (6) The permittee shall give immediate notice to the
17 department of any significant change in managing control of the
18 company.
19 (7) A corporate officer of the permittee shall certify to
20 the department that forfeiture of the aggregate amounts of self-
21 bonds furnished for all operations hereunder would not
22 materially affect the permittee's ability to remain in business
23 or endanger its cash flow to the extent it could not meet its
24 current obligations.
25 (8) The permittee may be required by the department to
26 pledge real and personal property to guarantee the permittee's
27 self-bond. The department is authorized to acquire and dispose
28 of such property in the event of a default to the bond
29 obligation and may use the moneys in the Bituminous Mine
30 Subsidence and Land Conservation Fund to administer this
20030H1800B3029 - 35 -
1 provision.
2 (9) The permittee may be required to provide third party
3 guarantees or indemnifications of its self-bond obligations.
4 (10) The permittee shall provide such other information
5 regarding its financial solvency, continuous business operation
6 and compliance with environmental laws as the department shall
7 require.
8 (11) An applicant shall certify to the department its
9 present intention to maintain its present corporate status for a
10 period in excess of five years.
11 (12) A permittee shall annually update the certifications
12 required hereunder and provide audited financial statements for
13 each fiscal year during which it furnishes self-bonds.
14 (13) The permittee shall pay an annual fee in the amount
15 determined by the department of the cost to review and verify
16 the permittee's application for self-bonding and annual
17 submissions thereafter.
18 * * *
19 Section 8. Section 7(a) of the act, amended October 10, 1980
20 (P.L.874, No.156), is amended to read:
21 Section 7. Jurisdiction; enforcement; rulemaking.--(a) All
22 bituminous coal mines or mining operations coming within the
23 provisions of this act shall be under the exclusive jurisdiction
24 of the [Department of Environmental Resources] department and
25 shall be conducted in accordance with this act, the act of July
26 17, 1961 (P.L.659, No.339), known as the "Pennsylvania
27 Bituminous Coal Mine Act," the act of November 10, 1965
28 (P.L.721, No.346), known as the "Pennsylvania Anthracite Coal
29 Mine Act," the act of July 9, 1976 (P.L.931, No.178), entitled
30 "An act providing for emergency medical personnel; employment of
20030H1800B3029 - 36 -
1 emergency medical personnel and emergency communications in coal
2 mines," and with such reasonable rules and regulations as may be
3 deemed necessary by the department for the health and safety of
4 those persons engaged in the work. The department shall have the
5 power to enforce the provisions of this act and the rules and
6 regulations promulgated hereunder by it.
7 * * *
8 Section 9. Section 9.1 of the act, added June 22, 1994
9 (P.L.357, No.54), is amended to read:
10 Section 9.1. Prevention of hazards to human safety and
11 [material] limitation on degree of damage to certain
12 buildings.--(a) [If the Department of Environmental Resources
13 determines and so notifies the mine operator that] The
14 department shall determine if a proposed mining technique or
15 extraction ratio will result in subsidence which creates an
16 imminent hazard to human safety and notify the mine operator of
17 its conclusion in regard thereto. If the department concludes
18 that there is such a hazard, utilization of such technique or
19 extraction ratio shall not be permitted unless the mine
20 operator, prior to mining, takes measures approved by the
21 department to eliminate the imminent hazard to human safety.
22 (b) [If the department determines and so notifies] The
23 department shall determine and so notify the mine operator
24 [that] if a proposed mining technique or extraction ratio will
25 cause subsidence which will result in [irreparable] severe
26 damage to a building enumerated in section 5.4(a)(3) or (4)[,
27 utilization]. Utilization of such technique or extraction ratio
28 shall not be permitted unless the building owner, prior to
29 [mining] issuance of the permit, consents to such mining or the
30 mine operator, with the consent of the building owner and prior
20030H1800B3029 - 37 -
1 to [mining] issuance of the permit, agrees to take measures
2 approved by the department to minimize [or reduce] impacts
3 resulting from subsidence [to] of such buildings.
4 (c) Underground mining activities shall not be conducted
5 beneath or adjacent to:
6 (1) public buildings and facilities;
7 (2) churches, schools or hospitals;
8 (3) impoundments with a storage capacity of twenty acre-feet
9 or more; [or]
10 (4) bodies of water with a volume of twenty acre-feet or
11 more;
12 (5) any property listed on the National Register of Historic
13 Places, any property determined by the Pennsylvania Historical
14 and Museum Commission to be eligible for such a listing and any
15 other property otherwise determined to be of historic or
16 archeological importance; or
17 (6) public utilities, including, but not limited to, gas,
18 electric and water lines, unless the mine operator has made
19 adequate arrangements with the operator of such utility, prior
20 to the issuance of a permit by the department, so as to assure
21 that the utility will be protected to the satisfaction of the
22 operator of the utility: Provided, That all costs associated
23 with protection of such public utilities shall be borne by the
24 mine operator;
25 unless the subsidence control plan demonstrates that subsidence
26 will not cause [material] significant damage to or reduce the
27 reasonably foreseeable use of such features or facilities. If
28 the department determines that it is necessary in order to
29 minimize the potential for [material] significant damage to the
30 features or facilities described above or to any aquifer or body
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1 of water that serves as a significant water source for any
2 public water supply system, it may limit the percentage of coal
3 extracted under or adjacent thereto.
4 (d) Nothing in this act shall be construed to amend, modify
5 or otherwise supersede standards related to prevailing
6 hydrologic balance contained in the Surface Mining Control and
7 Reclamation Act of 1977 (Public Law 95-87, 30 U.S.C. § 1201 et
8 seq.) and regulations promulgated by the Environmental Quality
9 Board for the purpose of obtaining or maintaining primary
10 jurisdiction over the enforcement and administration of that act
11 nor any standard contained in the act of June 22, 1937
12 (P.L.1987, No.394), known as "The Clean Streams Law," or any
13 regulation promulgated thereunder by the Environmental Quality
14 Board.
15 (e) As used in this section, the following words and phrases
16 shall have the meanings given to them in this subsection:
17 "Imminent hazard to human safety." Subsidence of homes,
18 dwellings, roads, buildings or other surface features which
19 could result in injury to the occupants or users thereof.
20 "Severe damage." Damage for which the cost of repair of a
21 dwelling, structure, building or other surface feature exceeds
22 twenty percent of the fair market value of the structure prior
23 to mining.
24 "Significant damage." Damage for which the cost of repair or
25 restoration to a structure or surface feature exceeds fifteen
26 percent of its replacement cost.
27 Section 10. Section 18 of the act, amended October 10, 1980
28 (P.L.874, No.156), is amended to read:
29 Section 18. Legislative oversight.--(a) In order to
30 maintain primary jurisdiction over surface coal mining in
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1 Pennsylvania pursuant to the Surface Mining Control and
2 Reclamation Act of 1977, Public Law 95-87, the Environmental
3 Quality Board shall have the authority to adopt initial
4 regulations on an emergency basis in accordance with section
5 204(3) (relating to omission of notice of proposed rule making)
6 of the act of July 31, 1968 (P.L.769, No.240), referred to as
7 the Commonwealth Documents Law. Provided, however, within thirty
8 days after the Secretary of the United States Department of
9 Interior grants such primary jurisdiction to Pennsylvania, the
10 Environmental Quality Board shall repropose the regulations
11 adopted on an emergency basis, shall submit the regulations to
12 the [Senate Environmental Resources and House Mines and Energy
13 Management Committees of the General Assembly] Environmental
14 Resources and Energy Committee of the Senate and the
15 Environmental Resources and Energy Committee of the House of
16 Representatives for their review and comments, and shall
17 schedule public hearings within ninety days after such grant of
18 primary jurisdiction for the purpose of hearing public comment
19 on any appropriate revisions.
20 (b) At least thirty days prior to consideration by the
21 Environmental Quality Board of any revised regulations or any
22 new regulations under this act other than those initial
23 regulations promulgated on an emergency basis, the department
24 shall submit such regulation to the [Senate Environmental
25 Resources and House Mines and Energy Management Committees of
26 the General Assembly] Environmental Resources and Energy
27 Committee of the Senate and the Environmental Resources and
28 Energy Committee of the House of Representatives for their
29 review and comment.
30 Section 11. Section 18.1 of the act, added June 22, 1994
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1 (P.L.357, No.54), is amended to read:
2 Section 18.1. Compilation and analysis of data.--(a) The
3 department shall conduct postmining inspections on all
4 undermined properties to determine the degree of structural
5 damage, completion of repairs or replacements and effectiveness
6 of repairs and replacements. As a part of these inspections, the
7 department shall record repair costs, duration of the repair
8 period, type of water supply replacement and water supply
9 utilized. The department shall compile, on an ongoing basis, the
10 information so collected and the information contained in deep
11 mine permit applications, in monitoring reports and other data
12 submitted by operators, from enforcement actions and from any
13 other appropriate source for the purposes set forth below.
14 (b) Such data shall be analyzed by the department, utilizing
15 the services of professionals or institutions recognized in the
16 field, for the purpose of determining, to the extent possible,
17 the effects of deep mining on subsidence of surface structures
18 and features and on water resources, including sources of public
19 and private water supplies.
20 (c) The [analysis] analyses of such data and any relevant
21 findings shall be presented in report form to the Governor, the
22 General Assembly and to the Citizens Advisory Council of the
23 department at five-year intervals commencing in 1993.
24 (d) [Nothing contained herein shall be construed as
25 authorizing the department to require a mine operator to submit
26 additional information or data, except that it shall require
27 reporting of all water loss incidents or claims of water loss.]
28 The department, as part of its Annual Report Of Mining
29 Activities, shall report the numbers of all water loss incidents
30 or claims of water loss, numbers of incidents of road damage
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1 from mine subsidence, the numbers of all incidents of subsidence
2 damage to surface structures or claims of structural damage from
3 mine subsidence on a county-by-county basis for each mine which
4 is covered in the Annual Report Of Mining Activities.
5 (e) Beginning on the effective date of this subsection, as
6 part of all reports to the Governor, General Assembly and the
7 Citizens Advisory Council pursuant to subsection (c), the
8 department shall undertake a comprehensive evaluation of the
9 various techniques and methods employed by or on behalf of mine
10 operators to mitigate subsidence damage to roads and surface
11 structures, including surface waters, to determine the extent to
12 which these techniques and methods are effective in preventing
13 structural and nonstructural damage to surface structures and as
14 part thereof shall investigate and report on whether other
15 potential techniques and methods are available which would more
16 effectively prevent all types of subsidence-related damage to
17 surface structures.
18 Section 12. This amendatory act shall be known and may be
19 cited as the Coal Field Water and Property Protection Act.
20 Section 13. This act shall take effect in 60 days.
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