PRINTER'S NO. 3952
No. 2653 Session of 2004
INTRODUCED BY DALEY, GEORGE, BELARDI, WALKO, PISTELLA, LaGROTTA,
JAMES AND YOUNGBLOOD, MAY 27, 2004
REFERRED TO COMMITTEE ON ENVIRONMENTAL RESOURCES AND ENERGY,
MAY 27, 2004
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 procedures for
29 securing restoration or replacement of affected water
30 supplies, for restoration or replacement of water, for
31 restoration or compensation for structures damaged by
32 underground mining and for procedure for securing repair and
33 or compensation for damage to structures caused by
1 underground mining; establishing the Longwall Mining
2 Commission; and providing for a backfilling study.
3 The General Assembly of the Commonwealth of Pennsylvania
4 hereby enacts as follows:
5 Section 1. Sections 5.2, 5.3, 5.4 and 5.5 of the act of
6 April 27, 1966 (1st Sp.Sess., P.L.31, No.1), known as The
7 Bituminous Mine Subsidence and Land Conservation Act, added June
8 22, 1994 (P.L.357, No.54), are amended to read:
9 Section 5.2. Procedures for securing restoration or
10 replacement of affected water supplies; duties of Department of
11 Environmental Resources.--(a) (1) Whenever a landowner or
12 water user experiences contamination, diminution or interruption
13 of a water supply which is believed to have occurred as a result
14 of underground coal mining operations, that landowner or water
15 user shall notify the mine operator who shall with reasonable
16 diligence investigate the water loss.
17 (2) Where the presumption of subsection (c) applies and the
18 user is without a readily available alternate source, the
19 operator shall provide a temporary water supply within [twenty-
20 four] twelve hours of being contacted by the landowner or water
21 user.
22 (3) If a temporary water supply is not provided within
23 [twenty-four] twelve hours, the Department of Environmental
24 Resources, after notice by the landowner or water user, shall
25 order the operator to provide temporary water within [twenty-
26 four] twelve hours. The operator shall notify the department of
27 any claim of contamination, diminution or interruption made to
28 it by a landowner or water user and its disposition.
29 (b) (1) If the affected water supply has not been restored
30 or an alternate source has not been provided by the operator or
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1 if an operator ceases to provide an alternate source, the
2 landowner or water user may so notify the department and request
3 that an investigation be conducted.
4 (2) Within ten days of such notification, the department
5 shall investigate any such claim and shall, within forty-five
6 days following notification, make a determination of whether the
7 contamination, diminution or interruption was caused by the
8 underground mining operation and so notify all affected parties.
9 If it finds causation, it shall issue such orders to the mine
10 operator as are necessary to assure compliance with this
11 section. Such orders may include orders requiring the temporary
12 replacement of a water supply where it is determined that the
13 contamination, diminution or interruption may be of limited
14 duration, orders requiring the provision of immediate temporary
15 water to the landowner or orders requiring the provision of a
16 permanent alternate source where the contamination, diminution
17 or interruption does not abate within [three years] one year of
18 the date on which the supply was adversely affected.
19 (c) In any determination or proceeding under this section,
20 it shall be presumed that an underground mine operator is
21 responsible for the contamination, diminution or interruption of
22 a water supply that is within an area above the mine determined
23 by projecting a thirty-five degree angle from the vertical from
24 the outside of any coal removal area. The mine operator may
25 successfully rebut the presumption by affirmatively proving that
26 access was denied to the property on which the supply is located
27 to conduct premining and postmining surveys of the quality and
28 quantity of the supply, that the mine operator thereafter served
29 notice upon the landowner by certified mail or personal service,
30 which notice identified the rights established by sections 5.1
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1 and 5.3 and this section, that access had been denied and the
2 landowner failed to provide or authorize access within ten days
3 after receipt thereof.
4 (d) Unless the presumption contained in subsection (c)
5 applies, a landowner, the department or any affected user
6 asserting contamination, diminution or interruption shall have
7 the burden to affirmatively prove that underground mining
8 activity caused the contamination, diminution or interruption.
9 Wherever a mine operator, upon request, has been denied access
10 to conduct a premining survey and the mine operator thereafter
11 served notice upon the landowner by certified mail or personal
12 service, which notice identified the rights established by
13 sections 5.1 and 5.3 and this section, was denied access and the
14 landowner failed to provide or authorize access within ten days
15 after receipt thereof, then such affirmative proof shall include
16 premining baseline data, provided by the landowner or the
17 department, relative to the affected water supply.
18 (e) A mine operator shall be relieved of liability for
19 affecting a public or private water supply by contamination,
20 diminution or interruption by affirmatively proving one of the
21 following defenses:
22 (1) The contamination, diminution or interruption existed
23 prior to the mining activity as determined by a premining
24 survey.
25 (2) The contamination, diminution or interruption occurred
26 more than three years after mining activity occurred.
27 (3) The contamination, diminution or interruption occurred
28 as the result of some cause other than the mining activity.
29 (f) Any mine operator who obtains water samples in a
30 premining or postmining survey shall utilize a certified
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1 laboratory to analyze such samples and shall submit copies of
2 the results of such analysis, as well as the results of any
3 quantitative analysis, to the department and to the landowner
4 within thirty days of their receipt. Nothing contained herein
5 shall be construed as prohibiting a landowner or water user from
6 utilizing an independent certified laboratory to sample and
7 analyze the water supply.
8 (g) If an affected water supply is not restored or
9 reestablished or a permanent alternate source is not provided
10 within [three years] one year, the mine operator may be relieved
11 of further responsibility by entering into a written agreement
12 providing compensation acceptable to the landowner. If no
13 agreement is reached, the mine operator, at the option of the
14 landowner, shall:
15 (1) purchase the property for a sum equal to its fair market
16 value immediately prior to the time the water supply was
17 affected; or
18 (2) make a one-time payment equal to the difference between
19 the property's fair market value immediately prior to the time
20 the water supply was affected and at the time payment is made;
21 whereupon the mine operator shall be relieved of further
22 obligation regarding contamination, diminution or interruption
23 of the affected water supply under this act. Any measures taken
24 under sections 5.1 and 5.3 and this section to relieve a mine
25 operator of further obligation regarding contamination,
26 diminution or interruption of an affected water supply shall not
27 be deemed to bar a subsequent purchaser of the land on which the
28 affected water supply was located or any water user on such land
29 from invoking rights under this section for contamination,
30 diminution or interruption of a water supply resulting from
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1 subsequent mining activity other than that contemplated by the
2 mine plan in effect at the time the original supply was
3 affected.
4 (h) Prior to entering into an agreement with the mine
5 operator pursuant to subsection (g), the landowner may submit a
6 written request to the department asking that the department
7 review the operator's finding that an affected water supply
8 cannot reasonably be restored or that a permanent alternate
9 source, as described in subsection (i), cannot reasonably be
10 provided. The department shall provide its opinion to the
11 landowner within sixty days of receiving the landowner's
12 request. The department's opinion shall be advisory only,
13 including for purposes of assisting the landowner in selecting
14 the optional compensation authorized under subsection (g). The
15 department's opinion shall not prevent the landowner from
16 entering into an agreement with the mine operator pursuant to
17 subsection (g), and such opinion shall not serve as the basis
18 for any action by the department against the mine operator or
19 create any cause of action in a third party, provided the
20 operator otherwise complies with subsection (g).
21 (i) For purposes of this section, a permanent alternate
22 source shall include any well, spring, municipal water supply
23 system or other supply approved by the department which is
24 adequate in quantity, quality and of reasonable cost to serve
25 the premining uses of the affected water supply.
26 (j) The department shall require an operator to describe how
27 water supplies will be replaced. Nothing contained herein shall
28 be construed as authorizing the department to require a mine
29 operator to provide a replacement water supply prior to mining
30 as a condition of securing a permit to conduct underground coal
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1 mining.
2 (k) Any landowner, water user or mine operator aggrieved by
3 an order or determination of the department issued under this
4 section shall have the right to appeal such order to the
5 Environmental Hearing Board within thirty days of receipt of the
6 order.
7 Section 5.3. Voluntary agreement; restoration or replacement
8 of water; deed recital.--(a) Nothing contained in this act
9 shall prohibit the mine operator and landowner at any time after
10 the effective date of this section from voluntarily entering
11 into an agreement establishing the manner and means by which an
12 affected water supply is to be restored or an alternate supply
13 is to be provided or providing fair compensation for such
14 contamination, diminution or interruption. Any release contained
15 in such an agreement shall only be valid in releasing the
16 operator from liability for affecting a public or private water
17 supply by contamination, diminution or interruption if all of
18 the following apply:
19 (1) It clearly states what rights are established by this
20 act.
21 (2) The landowner expressly acknowledges their release for
22 the consideration rendered.
23 (3) The contamination, diminution or interruption of the
24 water supply occurs as a result of the mining contemplated by
25 the agreement.
26 (4) The term of the release does not exceed thirty-five
27 years.
28 (5) Notwithstanding the provisions of an agreement entered
29 into under this section, in the event that an affected water
30 supply cannot reasonably be restored or that a permanent
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1 alternate source, as described in section 5.2(i), cannot
2 reasonably be provided within [three years] one year of the date
3 on which the supply was adversely affected, the landowner shall
4 have the option of proceeding pursuant to section 5.2(g) and
5 (h). Any amounts previously paid to the landowner by the mine
6 operator pursuant to an agreement entered into under this
7 section that were not used by the landowner to restore or
8 replace the affected water supply or to secure a permanent
9 alternate source, as described in section 5.2(i), shall be
10 deducted from the compensation determined to be due pursuant to
11 section 5.2(g).
12 (b) In every deed for the conveyance of property for which
13 an agreement executed pursuant to subsection (a) is effective at
14 the time of transfer, the grantor shall include in the deed a
15 recital of the agreement and any release contained therein.
16 (c) Nothing contained in this act shall prevent any
17 landowner or water user who claims contamination, diminution or
18 interruption of a water supply from seeking any other remedy
19 that may be provided at law or in equity. In any proceedings in
20 pursuit of a remedy other than as provided herein, the
21 provisions of this act shall not apply and the party or parties
22 against whom liability is sought to be imposed may assert in
23 defense any rights or waivers arising from provisions contained
24 in deeds, leases or agreements pertaining to mining rights or
25 coal ownership on the property in question.
26 Section 5.4. Restoration or compensation for structures
27 damaged by underground mining.--(a) [Whenever] The operator of
28 a coal mine shall be liable as provided in subsection (a.1)
29 whenever its underground mining operations conducted under this
30 act cause damage to any of the following surface buildings
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1 overlying or in the proximity of the mine:
2 (1) any building which is accessible to the public,
3 including, but not limited to, commercial, industrial and
4 recreational buildings and all permanently affixed structures
5 appurtenant thereto;
6 (2) any noncommercial buildings customarily used by the
7 public, including, but not limited to, schools, churches and
8 hospitals;
9 (3) dwellings used for human habitation and permanently
10 affixed appurtenant structures or improvements in place on the
11 effective date of this section or on the date of first
12 publication of the application for a Mine Activity Permit or a
13 five-year renewal thereof for the operations in question and
14 within the boundary of the entire mine as depicted in said
15 application; or
16 (4) the following agricultural structures: all barns and
17 silos and all permanently affixed structures of five hundred or
18 more square feet in area that are used for raising livestock,
19 poultry or agricultural products, for storage of animal waste or
20 for the processing or retail marketing of agricultural products
21 produced on the farm on which such structures are located.[; the
22 operator of such coal mine shall repair such damage or
23 compensate the owner of such building for the reasonable cost of
24 its repair or the reasonable cost of its replacement where the
25 damage is irreparable.]
26 (a.1) The operator of a coal mine that causes damage to
27 property as provided in subsection (a) shall provide the
28 property owner with one of the following:
29 (1) repair of the damage;
30 (2) the cost of repairing the damage; or
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1 (3) the reasonable cost of replacing the property where the
2 damage is irreparable; provided, however, the owner of a
3 dwelling used for human habitation has the option to require
4 that the operator purchase the owner's property for its
5 replacement value and pay the owner's moving costs when the
6 actual or estimated cost of repairs exceeds $20,000.
7 (b) For any irreparably damaged agricultural structure
8 identified in subsection (a)(4) which, at the time of damage,
9 the operator can affirmatively prove was being used for a
10 different purpose than the purpose for which such structure was
11 originally constructed, the operator may provide for the
12 reasonable cost to replace the damaged structure with a
13 structure satisfying the functions and purposes served by the
14 damaged structure before such damage occurred.
15 (c) A mine operator shall not be liable to repair or
16 compensate for subsidence damage if the mine operator, upon
17 request, is denied access to the property upon which the
18 building is located to conduct premining and postmining surveys
19 of the building and surrounding property and thereafter serves
20 notice upon the landowner by certified mail or personal service,
21 which notice identifies the rights established by sections 5.5
22 and 5.6 and this section, the mine operator was denied access
23 and the landowner failed to provide or authorize access within
24 ten days after receipt thereof.
25 Section 5.5. Procedure for securing repair and/or
26 compensation for damage to structures caused by underground
27 mining; duties of Department of Environmental Resources.--(a)
28 The owner of any building enumerated in section 5.4(a) who
29 believes that the removal of coal has caused mine subsidence
30 resulting in damage to such building and who wishes to secure
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1 repair of or compensation for such damage shall notify the mine
2 operator. If the mine operator agrees that mine subsidence
3 damaged such building, he shall cause such damage to be fully
4 repaired or compensate the owner for such damage in accordance
5 with section [5.4(a)] 5.4 (a.1) or with an agreement reached
6 between the parties either prior to mining or after the damage
7 has occurred.
8 (b) If the parties are unable to agree within six months of
9 the date of notice as to the cause of the damage or the
10 reasonable cost of repair or compensation, the owner of the
11 building may file a claim in writing with the Department of
12 Environmental Resources, a copy of which shall be sent to the
13 operator. All claims under this subsection shall be filed within
14 two years of the date damage to the building occurred.
15 (c) The department shall make an investigation of a claim
16 within thirty days of receipt of the claim. The department
17 shall, within sixty days following the investigation, make a
18 determination in writing as to whether the damage was caused by
19 subsidence due to underground coal mining and, if so, the
20 reasonable cost of repairing or replacing the damaged structure.
21 If the department finds the damage to be caused by the mining,
22 it shall issue a written order directing the operator to
23 compensate or to cause repairs to be made within six months or a
24 longer period if the department finds that occurrence of
25 subsidence or subsequent damage may occur to the same building
26 as a result of mining.
27 (d) In no event shall the mine operator be liable for
28 repairs or compensation in an amount exceeding the cost of
29 replacement of the damaged structure. The occupants of a damaged
30 structure shall also be entitled to additional payment for
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1 reasonable, actual expenses incurred for temporary relocation
2 and for other actual reasonable, incidental costs agreed to by
3 the parties or approved by the department. In addition, the
4 owner of a dwelling used for human habitation shall receive from
5 the mine operator an additional payment in the amount of twenty
6 percent of the cost of repairs as compensation for the hardship
7 resulting from the damage. In the event the damage is
8 irreparable, the owner shall receive twenty percent of the
9 reasonable replacement cost of the property.
10 (e) If either the landowner or the mine operator is
11 aggrieved by an order issued by the department under section 5.4
12 or this section, such person shall have the right to appeal the
13 order to the Environmental Hearing Board within thirty days of
14 receipt of the order. The appeal of a mine operator shall not be
15 considered to be perfected unless, within sixty days of the date
16 on which the mine operator received the department's order, the
17 operator has deposited an amount equal to the cost of repair or
18 the compensation amount ordered by the department in an
19 interest-bearing escrow account administered for such purposes
20 by the department.
21 (f) If the mine operator shall fail to repair or compensate
22 for subsidence damage within six months or such longer period as
23 the department has established or shall fail to perfect an
24 appeal of the department's order directing such repair or
25 compensation, the department shall issue such orders and take
26 such actions as are necessary to compel compliance with the
27 requirements hereof, including, but not limited to, cessation
28 orders and permit revocation. If the mine operator fails to
29 repair or compensate for damage after exhausting its right of
30 appeal, the department shall pay the escrow deposit made with
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1 respect to the particular claim involved and accrued interest to
2 the owner of the damaged building.
3 (g) Except as provided in subsection (f), the existence of
4 unresolved claims of subsidence damage shall not be used by the
5 department as a basis for withholding permits from or suspending
6 review of permit applications submitted by the mine operator
7 against whom such claims have been made.
8 (h) The department shall provide special assistance for as
9 long as the department deems necessary to residents who are
10 disabled or over sixty-five years of age and who are harmed by
11 underground mining operations. Special assistance may include
12 counseling, visitation, relocation or any other services the
13 department chooses. The mine operator shall pay the cost of the
14 special services.
15 Section 2. The act is amended by adding sections to read:
16 Section 18.2. Longwall Mining Commission.--(a) There is
17 established the Longwall Mining Commission to investigate the
18 economic impact of surface water losses on existing active farms
19 as a result of longwall mining and to evaluate the use of
20 alternative crops to mitigate the economic impact.
21 (b) The commission shall be composed of the following:
22 (1) The Secretary of Agriculture, or a designee.
23 (2) The Secretary of Environmental Protection, or a
24 designee.
25 (3) The executive director of the Pennsylvania Farm Bureau,
26 or a designee.
27 (4) The executive director of the Pennsylvania Coal
28 Association, or a designee.
29 (5) The executive director of the United Mine Workers of
30 America, or a designee.
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1 (6) One member, appointed by the Secretary of Agriculture,
2 of a Statewide local government association representing the
3 type of municipality affected by the longwall mining.
4 (7) One member, appointed by the Governor, of an
5 environmental advocacy group.
6 (c) All members shall serve at the pleasure of the
7 appointing authority, except that no member appointed under
8 subsection (b)(1), (2), (3), (4) or (5) shall serve past the
9 date of expiration of office.
10 (d) Vacancies in the membership of the commission shall be
11 filled in the same manner as the original appointment.
12 (e) (1) The commission shall elect, by a majority of all
13 its members, a chairman, vice chairman and a secretary from
14 among its members, each to serve for a term of one year.
15 (2) A majority of all members of the commission shall
16 constitute a quorum for the transaction of business.
17 (3) The commission may adopt rules for its government,
18 organization and procedures, not inconsistent with the
19 provisions of this section.
20 (f) Commission members shall receive no compensation for
21 their services but shall be reimbursed by the Department of
22 Agriculture for all necessary travel and other reasonable
23 expenses incurred in connection with the performance of their
24 duties as members of the commission.
25 (g) The Department of Agriculture shall provide
26 administrative staff, support and services to the commission on
27 an ongoing basis.
28 Section 18.3. Backfilling study.--The Department of
29 Environmental Protection shall investigate the cost and efficacy
30 of the practice known as backfilling of slag during longwall
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1 mining in mitigating subsidence. The investigation shall be
2 completed within one year of the effective date of this act. The
3 department shall report its findings to the chairman and
4 minority chairman of the Committee on Environmental Resources
5 and Energy of the Senate and the chairman and minority chairman
6 of the Committee on Environmental Resources and Energy of the
7 House of Representatives.
8 Section 3. This act shall take effect in 60 days.
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