PRINTER'S NO. 1366
No. 1008 Session of 2004
INTRODUCED BY FERLO, TARTAGLIONE, C. WILLIAMS, COSTA, KITCHEN
AND WONDERLING, JANUARY 21, 2004
REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY, JANUARY 21, 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 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
32 underground mining, for procedures for securing restoration
33 or replacement of affected water supplies, for voluntary
1 agreement, for restoration or compensation for structures
2 damaged by underground mining, for procedure for securing
3 repair and compensation for damages to structures caused by
4 underground mining, for voluntary agreements for repair or
5 compensation for damages to structures caused by underground
6 mining and for repair of damage or satisfaction of claims;
7 providing for protection requirements for public roads, for
8 procedure for securing compensation for damage to public
9 roads caused by underground mining and for voluntary
10 agreements for compensation for damages to public roads
11 caused by underground mining; further providing for repair of
12 damage or satisfaction of claims, revocation or suspension of
13 permit, bond or collateral, for prevention of hazards to
14 human safety and limitation of degree of damage to certain
15 buildings, for legislative oversight, for compilation and
16 analysis of data; and making editorial changes.
17 The General Assembly of the Commonwealth of Pennsylvania
18 hereby enacts as follows:
19 Section 1. The title and section 3 of the act of April 27,
20 1966 (1st Sp.Sess., P.L.31, No.1), known as The Bituminous Mine
21 Subsidence and Land Conservation Act, amended June 22, 1994
22 (P.L.357, No.54), are amended to read:
23 AN ACT
24 To protect the public health, welfare and safety by regulating
25 the mining of bituminous coal; declaring the existence of a
26 public interest in the support of surface structures;
27 providing a remedy for the restoration or replacement of
28 water supplies affected by underground mining; providing a
29 remedy for the restoration or replacement or compensation for
30 surface structures damaged by underground mining; providing
31 standards for the prevention of hazards to human safety and
32 material damage to certain structures; requiring permits, and
33 in certain circumstances bonds, for the mining of bituminous
34 coal; providing for the filing of maps or plans with
35 recorders of deeds; providing for the giving of notice of
36 mining operations to political subdivisions and surface
37 landowners of record; requiring mine inspectors to accompany
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1 municipal officers and their agents on inspection trips;
2 granting powers to public officers and affected property
3 owners to enforce the act; requiring grantors to certify as
4 to whether any structures on the lands conveyed are entitled
5 to support from the underlying coal and grantees to sign an
6 admission of a warning of the possible lack of any such right
7 of support; requiring grantors to provide notice of the
8 existence of voluntary agreements for the restoration or
9 replacement of water supplies or for the repair or
10 compensation for structural damage; imposing duties on the
11 Department of Environmental [Resources] Protection for the
12 compilation and analysis of data; and imposing liability for
13 violation of the act.
14 Section 3. Legislative findings; declaration of policy.--(a)
15 It is hereby determined by the General Assembly of Pennsylvania
16 and declared as a matter of legislative findings that:
17 (1) Present mine subsidence legislation and coal mining laws
18 have failed to protect the public interest in Pennsylvania in
19 preserving our land.
20 (2) Damage from mine subsidence has seriously impeded land
21 development of the Commonwealth.
22 (3) Damage from mine subsidence has caused a very clear and
23 present danger to the health, safety and welfare of the people
24 of Pennsylvania.
25 (4) Damage by subsidence erodes the tax base of the affected
26 municipalities.
27 (5) Coal and related industries and their continued
28 operation are important to the economic welfare and growth of
29 the Commonwealth.
30 (6) In the past, owners of surface structures have not in
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1 many instances received adequate notice or knowledge regarding
2 subsurface support, or lack thereof, for surface structures, and
3 therefore the State must exercise its police powers for the
4 protection of the structures covered herein.
5 (7) In order to prevent the occurrence of such state of
6 affairs in the future, the deed notice provisions relating to
7 such subsurface support, or lack thereof to a person desiring to
8 erect a surface structure after the effective date of this act,
9 must be emphasized and strengthened and it is necessary to make
10 available to those persons desiring to erect a surface structure
11 procedures whereby adequate support of such structure can be
12 acquired.
13 (8) Historic properties within Pennsylvania are
14 irreplaceable resources for future generations, but they have
15 not received adequate protection from damage due to mine
16 subsidence.
17 (9) Preservation of surface water resources, including
18 wetlands, during and after coal extraction is essential to the
19 public interest.
20 (10) Millions of tax dollars are invested annually in the
21 construction and maintenance of roads and bridges in this
22 Commonwealth. This public infrastructure needs to be protected
23 for future generations.
24 (b) The Pennsylvania General Assembly therefore declares it
25 to be the policy of the Commonwealth of Pennsylvania that:
26 (1) The protection of surface structures and better land
27 utilization are of utmost importance to Pennsylvania.
28 (2) Damage to surface structures and the land supporting
29 them caused by mine subsidence is against the public interest
30 and may adversely affect the health, safety and welfare of our
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1 citizens.
2 (3) The prevention or restoration of damage from mine
3 subsidence is recognized as being related to the economic future
4 and well-being of Pennsylvania.
5 (4) The preservation within the Commonwealth of surface
6 structures and the land supporting them is necessary for the
7 safety and welfare of the people.
8 (5) It is the intent of this act to harmonize the protection
9 of surface structures and the land supporting them and the
10 continued growth and development of the bituminous coal industry
11 in the Commonwealth.
12 (6) [It is necessary to develop an adequate remedy for the
13 restoration and replacement of water supplies affected by
14 underground mining.] It is the intent of this act to provide
15 protection of water resources, including the restoration and
16 replacement of water supplies affected by underground mining, so
17 that these resources are available for utilization in connection
18 with agricultural, commercial, recreational and residential uses
19 of the surface during and after coal extraction.
20 (7) It is necessary to develop a remedy for the restoration
21 or replacement of or compensation for surface structures damaged
22 by underground mining.
23 (8) It is necessary to provide a method whereby surface
24 structures erected after the effective date of this act may be
25 protected from damage arising from mine subsidence.
26 (9) It is necessary to protect historic properties from
27 material damage to their historic fabric arising from subsidence
28 related to mine operation.
29 (10) It is necessary to protect State and local roads from
30 subsidence related to mine operation.
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1 Section 2. The act is amended by adding a section to read:
2 Section 3.1. Definitions.--The following words and phrases
3 when used in this act shall have the meanings given to them in
4 this section unless the context clearly indicates otherwise:
5 "Department." The Department of Environmental Protection of
6 the Commonwealth.
7 "Perennial stream." A body of water that flows in a channel
8 or bed composed primarily of substrates associated with flowing
9 waters and is capable, in the absence of pollution or other
10 manmade stream disturbances, of supporting a benthic
11 macroinvertebrate community composed of two or more recognizable
12 taxonomic groups of organisms which:
13 (1) are large enough to be seen by the unaided eye;
14 (2) can be retained by a United States Standard No. 30
15 sieve with 28 meshes per inch and 0.595 millimeter openings;
16 and
17 (3) can live at least part of their life cycles within
18 or upon available substrates in a body of water or water
19 transport system.
20 "Public road." Any road or appurtenant structure constructed
21 or maintained by the Commonwealth or a municipality.
22 "Secretary." The Secretary of Environmental Protection of
23 the Commonwealth.
24 "Shall." When used in any section of this act is to be
25 interpreted as imposing a mandatory duty on the Department of
26 Environmental Protection or the permittee or both. The term
27 shall not be construed as being directory or discretionary.
28 Section 3. Section 5(a) and (e) of the act, amended October
29 10, 1980 (P.L.874, No.156), are amended to read:
30 Section 5. Permit; application; map or plan; bond or other
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1 security; filing; general rulemaking authority; prevention of
2 damage; mine stability; maintenance of use and value of lands.--
3 (a) Before any bituminous coal mine subject to the provisions
4 of this act is opened, reopened, or continued in operation, the
5 owner, operator, lessor, lessee, general manager, superintendent
6 or other person in charge of or having supervision over such
7 mine or mining operation shall apply to the [Department of
8 Environmental Resources] department, on a form prepared and
9 furnished by the department, for a permit for each separate
10 bituminous coal mine or mining operation. As a part of such
11 application for a permit the applicant shall furnish, in
12 duplicate, a map or plan of a scale and in a manner in
13 accordance with rules and regulations of the [Department of
14 Environmental Resources] department showing the location of the
15 mine or mining operation, the extent to which mining operations
16 presently have been completed, and the extent to which mining
17 operations will be conducted under the permit being requested.
18 Such map or plan shall show the boundaries of the area of
19 surface land overlying the mine or mining operation, the
20 location and/or designation of all structures in place on the
21 effective date of this act which overlie the proposed mine or
22 mining operation, the name of the record owner or owners of said
23 surface structures, the location of all bodies of water, rivers
24 and streams, roads and railroads, and the political subdivision
25 and county in which said structures are located. Such map or
26 plan shall include, in addition to the information specified
27 above, such information on the character of the mining
28 operation, overburden, rock strata, proximity of and conditions
29 in overlying or underlying coal seams and other geological
30 conditions as the department, by rules and regulations, shall
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1 direct. The department shall have the power to require the
2 updating of such maps from time to time as it shall prescribe by
3 rule and regulation. The map or plan must set forth a detailed
4 description of the manner, if any, by which the applicant
5 proposes to support the surface structures overlying the
6 bituminous mine or mining operation. Upon receipt of such
7 application in proper form the department shall cause a permit
8 to be issued or reissued if, in its opinion, the application
9 discloses that sufficient support will be provided for the
10 protected structures and that the operation will comply with the
11 provisions of this act and the rules and regulations issued
12 thereunder. All permits issued under this act shall contain such
13 terms and shall be issued for such duration as the department
14 may prescribe.
15 * * *
16 (e) (1) An operator of a coal mine subject to the
17 provisions of this act shall adopt measures and shall describe
18 to the department in his permit application measures that he
19 will adopt to [prevent subsidence causing material damage to the
20 extent technologically and economically feasible, to] maximize
21 mine stability, and to maintain the value and [reasonable]
22 reasonably foreseeable use of such surface land[: Provided,
23 however, That nothing].
24 (2) The demonstration to be made in the application shall
25 explain and provide technological and economic analysis of the
26 impacts of subsidence on each surface structure overlying the
27 mine which may be materially damaged by the mining. It shall
28 also include, but not be limited to:
29 (i) An alternatives analysis which will demonstrate whether
30 there are alternative methods of mining, mine layout and/or
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1 engineering which would minimize damage to dwellings and other
2 surface structures.
3 (ii) A structure specific plan for the mitigation of mine
4 subsidence related damage for each structure of the type
5 identified in section 5.4(a) which lies within the zone of
6 presumptive liability described in section 5.4(c).
7 (3) Each proposed subsidence damage mitigation plan shall be
8 reviewed and approved by the department as adequate to prevent
9 material damage to that structure prior to implementation
10 thereof by the operator. The department shall employ registered
11 professional structural engineers for this purpose. For the
12 purposes of this paragraph, "material damage" shall mean any
13 damage to a dwelling, building, barn or other surface structure
14 which could exceed five thousand dollars ($5,000).
15 (4) An applicant for a permit under this act shall also
16 demonstrate to the department in the applicant's permit
17 application that the proposed mining will be planned and
18 conducted in a manner which will maintain and protect existing
19 and designated surface water uses and the degree of water
20 quality necessary to protect these existing uses. The
21 Environmental Quality Board or the department may provide
22 additional protection to perennial streams.
23 (5) Nothing in this subsection shall be construed to
24 prohibit planned subsidence in a predictable and controlled
25 manner or the standard method of room and pillar mining so long
26 as the operator complies with the requirements of this section.
27 * * *
28 Section 4. Sections 5.1, 5.2, 5.3, 5.4, 5.5(a), (b) and (d)
29 and 5.6(c) of the act, added June 22, 1994 (P.L.357, No.54), are
30 amended to read:
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1 Section 5.1. Restoration or replacement of water supplies
2 affected by underground mining.--(a) [(1)] After the effective
3 date of this section, any mine operator who, as a result of
4 underground mining operations, affects a public or private water
5 supply by contamination, diminution or interruption shall
6 restore or replace the affected supply with an alternate source
7 which [adequately services in quantity and quality] is
8 equivalent in quantity and adequate in quality to serve the
9 premining uses of the supply or any reasonably foreseeable uses
10 of the supply.
11 [(2)] (a.1) A restored or replacement water supply shall be
12 deemed adequate:
13 (1) where it differs in quality from the premining supply,
14 providing it meets standards set forth in the act of May 1, 1984
15 (P.L.206, No.43), known as the "Pennsylvania Safe Drinking Water
16 Act," or is comparable to the premining supply where that supply
17 did not meet such standards[.]; and
18 (2) when it produces the same or greater volume of water as
19 existed prior to mining.
20 If an operator fails to comply with this provision, the
21 [Secretary of Environmental Resources] secretary shall issue
22 such orders to the operator as are necessary to assure
23 compliance.
24 [(3)] (a.2) For the purposes of this section, the term
25 "water supply" shall include any existing source of water used
26 for domestic, commercial, industrial or recreational purposes or
27 for agricultural uses, including use or consumption of water to
28 maintain the health and productivity of animals used or to be
29 used in agricultural production and the [watering] irrigation of
30 lands on a periodic or permanent basis by a constructed or
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1 manufactured system in place [on the effective date of this act]
2 at the time of mining to provide [irrigation] water for
3 agricultural production of plants and crops at levels of
4 productivity or yield historically experienced by such plants or
5 crops within a particular geographic area, or which serves any
6 public building or any noncommercial structure customarily used
7 by the public, including, but not limited to, churches, schools
8 and hospitals.
9 [(b) A mine operator shall not be liable to restore or
10 replace a water supply under the provisions of this section if a
11 claim of contamination, diminution or interruption is made more
12 than two years after the supply has been adversely affected.]
13 Section 5.2. Procedures for securing restoration or
14 replacement of affected water supplies; duties of [Department of
15 Environmental Resources] department.--(a) (1) Whenever a
16 landowner or water user experiences contamination, diminution or
17 interruption of a water supply which is believed to have
18 occurred as a result of underground coal mining operations, that
19 landowner or water user shall notify the mine operator who shall
20 promptly notify the department thereof and with reasonable
21 diligence investigate the water loss.
22 (2) Where the presumption of subsection (c) applies and the
23 user is without a readily available alternate source, the
24 operator shall provide a temporary water supply within twenty-
25 four hours of being contacted by the landowner or water user.
26 (3) If a temporary water supply is not provided within
27 twenty-four hours, the [Department of Environmental Resources]
28 department, after notice by the landowner or water user, shall
29 order the operator to provide temporary water within twenty-four
30 hours. The operator shall notify the department of any claim of
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1 contamination, diminution or interruption made to it by a
2 landowner or water user and its disposition.
3 (b) (1) If the affected water supply has not been restored
4 or an alternate source has not been provided by the operator or
5 if an operator ceases to provide an alternate source, the
6 landowner or water user may so notify the department and request
7 that an investigation be conducted.
8 (2) Within ten days of such notification, the department
9 shall investigate any such claim and shall, within [forty-five]
10 thirty days following notification, make a determination in
11 writing of whether the contamination, diminution or interruption
12 was caused by the underground mining operation and so notify all
13 affected parties. If it finds causation, [it] within forty-five
14 days of receipt of the notification required by subsection (a),
15 the department shall issue [such orders] an order to the mine
16 operator [as are necessary to assure compliance with this
17 section. Such orders may include orders requiring the temporary
18 replacement of a water supply where it is determined that the
19 contamination, diminution or interruption may be of limited
20 duration, orders requiring the provision of immediate temporary
21 water to the landowner or orders requiring the provision of a
22 permanent alternate source where the contamination, diminution
23 or interruption does not abate within three years of the date on
24 which the supply was adversely affected.] requiring replacement
25 of the water supply.
26 (3) Temporary replacement of a water supply shall be
27 permitted for:
28 (i) no longer than ninety days after the department has
29 determined that there is contamination, diminution or
30 interruption of the supply caused by the underground operation;
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1 or
2 (ii) an additional two hundred seventy days when the
3 department determines that because water supply replacement is
4 to occur through connection to a public water supply such
5 additional time is necessary.
6 The permanent replacement supply shall be provided more promptly
7 where reasonably possible.
8 (c) In any determination or proceeding under this section,
9 it shall be presumed that an underground mine operator is
10 responsible for the contamination, diminution or interruption of
11 a water supply that is within [an area above the mine determined
12 by projecting a thirty-five degree angle from the vertical from
13 the outside of any coal removal area] two thousand five hundred
14 feet horizontally of any underground mining activity. The mine
15 operator may successfully rebut the presumption by affirmatively
16 proving that the mine operator solicited access [was denied] to
17 the property on which the supply is located to conduct premining
18 and postmining surveys of the quality and quantity of the supply
19 but was denied such access, that the mine operator notified the
20 department thereof and the department thereafter served notice
21 upon the landowner by certified mail or personal service, which
22 notice identified all of the rights established by sections 5.1
23 and 5.3 and this section[,] and that access [had been denied and
24 the landowner failed to provide or authorize access within ten
25 days after receipt thereof.] continued to be denied to the mine
26 operator or the department for this survey work for thirty days
27 after receipt by the landowner of the department's notice. In
28 addition to identifying the rights established in sections 5.1
29 and 5.3 and this section, the notice by the department shall
30 also advise the landowner receiving such notice that the failure
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1 to provide or authorize access may preclude the replacement of
2 the water supply, in the event the water supply is diminished,
3 contaminated or interrupted.
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 was served upon the landowner [by certified mail
12 or personal service,] as provided in subsection (c) which notice
13 identified the rights established by sections 5.1 and 5.3 and
14 this section, [was denied access] and the landowner failed to
15 provide or authorize access [within ten days after receipt
16 thereof,] as provided in subsection (c), then such affirmative
17 proof [shall] may include premining baseline data, provided by
18 the landowner or the department, relative to the affected water
19 supply.
20 (e) A mine operator shall be relieved of liability for
21 affecting a public or private water supply by contamination,
22 diminution or interruption by affirmatively proving [one] either
23 of the following defenses:
24 (1) The contamination, diminution or interruption existed
25 prior to the mining activity as determined by a premining
26 survey.
27 [(2) The contamination, diminution or interruption occurred
28 more than three years after mining activity occurred.]
29 (3) The contamination, diminution or interruption occurred
30 solely as [the] a result of some cause other than the mining
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1 activity.
2 When either of these defenses is asserted, it must be shown by
3 the mine operator that the premining survey of a water supply's
4 quantity and quality were completed before its mining activities
5 occurred within twenty-five hundred feet of that water supply.
6 (f) Any mine operator who obtains water samples in a
7 premining or postmining survey shall obtain sufficient numbers
8 of samples over a sufficient period of time to show any seasonal
9 fluctuations in quantity and quality, shall utilize a certified
10 laboratory to analyze such samples and shall submit copies of
11 the results of [such analysis] all analyses, as well as the
12 results of any quantitative analysis, to the department and to
13 the landowner within [thirty] ten days of their receipt. Nothing
14 contained herein shall be construed as prohibiting a landowner
15 or water user from utilizing an independent certified laboratory
16 to sample and analyze the water supply.
17 (g) If an affected water supply is not restored or
18 reestablished or a permanent alternate source is not provided
19 within [three years, the mine operator may be relieved of
20 further responsibility by entering into a written agreement
21 providing compensation acceptable to the landowner. If no
22 agreement is reached, the mine operator, at the option of the
23 landowner, shall:
24 (1) purchase the property for a sum equal to its fair market
25 value immediately prior to the time the water supply was
26 affected; or
27 (2) make a one-time payment equal to the difference between
28 the property's fair market value immediately prior to the time
29 the water supply was affected and at the time payment is made;
30 whereupon the mine operator shall be relieved of further
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1 obligation regarding contamination, diminution or interruption
2 of the affected water supply under this act. Any measures taken
3 under sections 5.1 and 5.3 and this section to relieve a mine
4 operator of further obligation regarding contamination,
5 diminution or interruption of an affected water supply shall not
6 be deemed to bar a subsequent purchaser of the land on which the
7 affected water supply was located or any water user on such land
8 from invoking rights under this section for contamination,
9 diminution or interruption of a water supply resulting from
10 subsequent mining activity other than that contemplated by the
11 mine plan in effect at the time the original supply was
12 affected.
13 (h) Prior to entering into an agreement with the mine
14 operator pursuant to subsection (g), the landowner may submit a
15 written request to the department asking that the department
16 review the operator's finding that an affected water supply
17 cannot reasonably be restored or that a permanent alternate
18 source, as described in subsection (i), cannot reasonably be
19 provided. The department shall provide its opinion to the
20 landowner within sixty days of receiving the landowner's
21 request. The department's opinion shall be advisory only,
22 including for purposes of assisting the landowner in selecting
23 the optional compensation authorized under subsection (g). The
24 department's opinion shall not prevent the landowner from
25 entering into an agreement with the mine operator pursuant to
26 subsection (g), and such opinion shall not serve as the basis
27 for any action by the department against the mine operator or
28 create any cause of action in a third party, provided the
29 operator otherwise complies with subsection (g).] ninety days,
30 the department shall order the mine operator to replace the
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1 water supply within ninety days unless replacement is by
2 connection to a public water supply in which case the department
3 shall order replacement in a period not to exceed one year.
4 (i) For purposes of this section, a permanent alternate
5 source shall include any well, spring, municipal water supply
6 system or other supply [approved by the department which is
7 adequate in quantity, quality and of reasonable cost] equivalent
8 in quantity to the premining supply and adequate in quality to
9 serve the premining uses of the affected water supply and the
10 reasonably projected future uses of that supply.
11 (j) (1) The department shall require an operator to
12 describe in his permit application how water supplies [will]
13 shall be replaced. [Nothing contained herein shall be construed
14 as authorizing the department to require a mine operator to
15 provide a replacement water supply prior to mining as a
16 condition of securing a permit to conduct underground coal
17 mining.]
18 (2) The operator shall, for each water supply which either
19 overlies the permit area or is within two thousand five hundred
20 feet of the permit boundary, describe specifically and with
21 particularity in the permit application, the manner in which
22 that water supply can be replaced within ninety days of being
23 affected by mining if it shall be contaminated, diminished or
24 interrupted. The permit application shall conclusively
25 demonstrate the availability of replacement options including,
26 but not limited to, a hookup to a public water supply, drilling
27 a well into a fresh water aquifer containing water of adequate
28 quality and equivalent quantity to be used for a replacement
29 supply, development of a spring in an area not affected by the
30 mining. The permit application shall include any and all such
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1 other information as may be necessary for the department to
2 determine that the water supply affected can actually be
3 replaced within ninety days of being adversely affected by the
4 mining, that such a replacement is feasible and practical, and
5 that the water for the replacement is available at the location
6 where the mining occurs. If the operator cannot conclusively
7 demonstrate each such replacement, the permit shall not issue.
8 (k) Any landowner, water user or mine operator aggrieved by
9 an order or determination of the department issued under this
10 section shall have the right to appeal such order to the
11 Environmental Hearing Board within thirty days of receipt of the
12 order.
13 Section 5.3. Voluntary agreement; restoration or replacement
14 of water; deed recital.--(a) Nothing contained in this act
15 shall prohibit the mine operator and landowner at any time after
16 the effective date of this section from voluntarily entering
17 into an agreement establishing the manner and means by which an
18 affected water supply is to be restored or an alternate supply
19 is to be provided [or providing fair compensation for such
20 contamination, diminution or interruption] as required by
21 section 5.2(g). Any release contained in such an agreement shall
22 only be valid in releasing the operator from liability for
23 affecting a public or private water supply by contamination,
24 diminution or interruption if all of the following apply:
25 (1) It clearly states [what] all of the landowner's rights
26 [are] in regard thereto as established by this act.
27 (2) The landowner expressly acknowledges their release for
28 the consideration rendered.
29 (3) The contamination, diminution or interruption of the
30 water supply occurs as a result of the mining contemplated by
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1 the agreement.
2 (4) The term of the release does not exceed thirty-five
3 years.
4 (5) Notwithstanding the provisions of an agreement entered
5 into under this section, in the event that an affected water
6 supply cannot reasonably be restored or that a permanent
7 alternate source, as described in section 5.2(i), cannot
8 reasonably be provided within [three years of the date on which
9 the supply was adversely affected] the time period specified in
10 section 5.2(g), the landowner shall have the option of
11 proceeding pursuant to section 5.2(g) [and (h). Any amounts
12 previously paid to the landowner by the mine operator pursuant
13 to an agreement entered into under this section that were not
14 used by the landowner to restore or replace the affected water
15 supply or to secure a permanent alternate source, as described
16 in section 5.2(i), shall be deducted from the compensation
17 determined to be due pursuant to section 5.2(g).] to compel
18 replacement.
19 (b) In every deed for the conveyance of property for which
20 an agreement executed pursuant to subsection (a) is effective at
21 the time of transfer, the grantor shall include in the deed a
22 recital of the agreement and any release contained therein.
23 (c) Nothing contained in this act shall prevent any
24 landowner or water user who claims contamination, diminution or
25 interruption of a water supply from seeking any other remedy
26 that may be provided [at] in law or [in] equity. In any
27 proceedings in pursuit of a remedy other than as provided
28 herein, the [provisions of this act shall not apply and the
29 party or parties against whom liability is sought to be imposed
30 may assert in defense any rights or waivers arising from
20040S1008B1366 - 19 -
1 provisions contained in deeds, leases or agreements pertaining
2 to mining rights or coal ownership on the property in question.]
3 mine operator against whom liability is sought to be imposed may
4 assert only those defenses specifically set forth in this act
5 and waives, as a privilege of being granted a permit to conduct
6 underground mining activities in this Commonwealth, any defense
7 based on any right or waiver arising from provisions contained
8 in deeds, leases or agreements pertaining to mining rights or
9 coal ownership on the property in question. Any defense or
10 waiver of rights contained in any severance deed shall be null
11 and void as a defense to water contamination, diminution or
12 interruption or for damages to the water supply's owner or user
13 arising from the water supply's contamination, diminution or
14 interruption, by an operator granted a permit under this act.
15 Section 5.4. Restoration or compensation for structures
16 damaged by underground mining.--(a) Whenever underground mining
17 operations conducted under this act cause damage to any of the
18 following surface buildings overlying or in the proximity of the
19 mine:
20 (1) any building which is accessible to the public,
21 including, but not limited to, commercial, industrial and
22 recreational buildings and all permanently affixed structures
23 appurtenant thereto;
24 (2) any noncommercial buildings customarily used by the
25 public, including, but not limited to, schools, churches and
26 hospitals;
27 (3) dwellings used or intended to be used for human
28 habitation and permanently affixed appurtenant structures or
29 improvements in place [on the effective date of this section or
30 on the date of first publication of the application for a Mine
20040S1008B1366 - 20 -
1 Activity Permit or a five-year renewal thereof for the
2 operations in question and within the boundary of the entire
3 mine as depicted in said application] when mining occurs; or
4 (4) the following agricultural structures: all barns and
5 silos and all permanently affixed structures of five hundred or
6 more square feet in area that are used for raising livestock,
7 poultry or agricultural products, for storage of animal waste or
8 for the processing or retail marketing of agricultural products
9 produced on the farm on which such structures are located;
10 the operator of such coal mine shall repair such damage or
11 compensate the owner of such building for the reasonable cost of
12 its repair or the reasonable cost of its replacement where the
13 damage is irreparable.
14 (a.1) The operator's duties to repair or compensate the
15 owner of any building listed within subsection (a) for the
16 reasonable cost of its repair or replacement shall include both
17 the duty to make or pay for all interim repairs to a damaged
18 structure reasonably needed to protect the health and safety of
19 the occupants and users thereof and the duty to make or pay for
20 such interim repairs to a damaged structure as are reasonably
21 needed to minimize further damage to that structure. Where the
22 operator fails to promptly make such interim repairs, the
23 building owner may have them made and the owner shall be paid
24 the cost thereof pursuant to section 5.5(d). The operator's
25 duties to repair or compensate shall also include the duty to
26 make repairs or to pay for the repair of all damages to
27 structures and the surface area surrounding same which result
28 from the installation of mine subsidence mitigation measures by
29 the operator.
30 (b) For any irreparably damaged agricultural structure
20040S1008B1366 - 21 -
1 identified in subsection (a)(4) which, at the time of damage,
2 the operator can affirmatively prove was being used for a
3 different purpose than the purpose for which such structure was
4 originally constructed, the operator, with the structure owner's
5 consent, may provide for the reasonable cost to replace the
6 damaged structure with a structure satisfying the functions and
7 purposes served by the damaged structure before such damage
8 occurred.
9 [(c) A mine operator shall not be liable to repair or
10 compensate for subsidence damage if the mine operator, upon
11 request, is denied access to the property upon which the
12 building is located to conduct premining and postmining surveys
13 of the building and surrounding property and thereafter serves]
14 (d) (1) The underground mine operator shall be presumed to
15 be responsible for any damage to structures located above the
16 mine and within an area above the mine determined by projecting
17 a thirty-five degree angle from the vertical from the outside of
18 any coal removal area. Subject to the provisions of subsection
19 (d), the mine operator may successfully rebut the presumption of
20 liability by affirmatively proving that the mine operator
21 solicited access to the property on which the structure is
22 located to conduct premining and postmining surveys of the
23 structure's condition but was denied such access; that the mine
24 operator notified the department thereof and the department
25 thereafter served notice upon the landowner by certified mail or
26 personal service, which notice [identifies] identified all of
27 the rights established by sections 5.5 and 5.6 and this
28 section[, the mine operator was denied access and the landowner
29 failed to provide or authorize access within ten days after
30 receipt thereof.]; and that access continued to be denied to the
20040S1008B1366 - 22 -
1 mine operator or the department for this survey work for thirty
2 days after receipt by the landowner of the department's notice.
3 (2) In addition to identifying all of the rights established
4 in sections 5.5 and 5.6 and this section, the notice by the
5 department shall also advise the land owner receiving such
6 notice that the failure to provide or authorize access may
7 preclude the repair of the structure's damage, in the event the
8 structure is damaged from mining activities.
9 (3) The mine operator may be excused from its responsibility
10 to prepare and implement a mine subsidence mitigation plan for a
11 structure where it solicited access to do so but is denied
12 access, notified the department thereof and the department was
13 unable to secure it access to do so using procedures paralleling
14 those set forth in this subsection as to the premining and
15 postmining inspections.
16 (e) Unless the presumption contained in subsection (d)
17 applies, a structure owner or the department asserting that
18 damage to the structure was caused by underground mining has the
19 burden to affirmatively provide that the underground mining
20 caused the damage. Wherever a mine operator in conformance with
21 the requirements of subsection (d) has been denied access to
22 conduct a premining or postmining survey but there has been full
23 compliance with subsection (d) as to attempting to obtain such
24 access, then affirmative proof may include premining baseline
25 data provided by the structure owner or the department relative
26 to the affected structure.
27 Section 5.5. Procedure for securing repair and/or
28 compensation for damage to structures caused by underground
29 mining; duties of Department of Environmental [Resources]
30 Protection.--(a) The owner of any building enumerated in
20040S1008B1366 - 23 -
1 section 5.4(a) who believes that the removal of coal has caused
2 mine subsidence resulting in damage to such building and who
3 wishes to secure repair of or compensation for such damage shall
4 notify the mine operator[.] thereof. The mine operator shall
5 promptly notify the department of each such claim he receives.
6 If the mine operator agrees that mine subsidence damaged such
7 building, he shall cause such damage to be fully repaired or
8 compensate the owner for such damage in accordance with section
9 5.4(a) or with an agreement in accordance with section 5.6
10 reached between the parties either prior to mining or after the
11 damage has occurred.
12 (b) If the parties are unable to agree [within six months of
13 the date of notice] as to the cause of the damage or the
14 reasonable cost of repair or compensation, the owner of the
15 building may file a claim in writing with the [Department of
16 Environmental Resources] department, a copy of which shall be
17 sent to the operator. [All claims under this subsection shall be
18 filed within two years of the date damage to the building
19 occurred.]
20 * * *
21 (d) In no event shall the mine operator be liable for
22 repairs or compensation in an amount exceeding the cost of
23 replacement of the damaged structure[.] with an equivalent
24 structure. Whenever damage to a structure exceeds one thousand
25 dollars ($1,000), the mine operator shall also compensate the
26 structure's owner an amount equal to 10% of the cost of all
27 repairs which will be made to the structure for the cost in time
28 and effort to the structure's owner in securing, making or
29 supervising the making of any such repairs. The occupants of a
30 damaged structure shall also be [entitled to additional payment]
20040S1008B1366 - 24 -
1 paid for reasonable, actual expenses incurred for temporary
2 relocation, interim storage of personal property and for other
3 actual reasonable, incidental costs [agreed to by the parties or
4 approved by the department.] incurred by the structure's
5 occupants as a result of damage from mine subsidence. Where an
6 occupant of a structure engages in a business which utilizes the
7 structure, the occupant shall be compensated for increased
8 business costs, lost business profits, loss of goodwill and lost
9 business opportunities incurred by that occupant as a result of
10 the subsidence damage to the structure.
11 * * *
12 Section 5.6. Voluntary agreements for repair or compensation
13 for damages to structures caused by underground mining; deed
14 recital.--* * *
15 (c) (1) The duty created by section 5.5 to repair or
16 compensate for subsidence damage to the buildings enumerated in
17 section 5.4(a) shall be the sole and exclusive administrative
18 remedy for such damage and shall not be diminished by the
19 existence of contrary provisions in deeds, leases or agreements
20 which [relieved] relieve mine operators from such duty. [Nothing
21 herein shall impair agreements entered into after April 27,
22 1966, and prior to the effective date of this section, which,
23 for valid consideration, provide for a waiver or release of any
24 duty to repair or compensate for subsidence damage. Any such
25 waiver or release shall only be valid with respect to damage
26 resulting from the mining activity contemplated by such
27 agreement.]
28 (2) Nothing contained in this act shall prevent the owner of
29 any building who claims damage thereto from subsidence from
30 seeking any other remedy that may be provided in law or equity.
20040S1008B1366 - 25 -
1 In any proceedings in pursuit of a remedy other than as provided
2 under this act, the mine operator against whom liability is
3 sought to be imposed may assert only those defenses specifically
4 set forth in this act and waives, as a privilege of being
5 granted a permit to conduct underground mining activities in
6 this Commonwealth, any defense based on any right or waiver
7 arising from provisions contained in deeds, leases or agreements
8 pertaining to mining rights or coal ownership on the property in
9 question. Any defense or waiver of rights contained in any
10 severance deed shall be null and void as a defense to subsidence
11 damage to a building, by an operator granted a permit under this
12 act.
13 * * *
14 Section 5. The act is amended by adding sections to read:
15 Section 5.7. Protection requirements for public roads.--(a)
16 An underground mine operator shall be presumed to be financially
17 responsible for the costs of repair of any subsidence damage to
18 public roads located above the mine or within an area above the
19 mine determined by projecting a thirty-five degree angle from
20 the vertical from the outside of any coal removal area.
21 (b) The department shall develop and implement regulations
22 to prevent, minimize and repair mine subsidence damage to public
23 roads. These regulations shall include, but are not limited to,
24 specific bonds to cover the projected cost of repairing
25 undermined roads within an area above the mine determined by
26 projecting a thirty-five degree angle from the vertical from the
27 outside of any coal removal area.
28 Section 5.8. Procedure for securing compensation for damage
29 to public roads caused by underground mining; duties of
30 department.--(a) The owner of any public road described in
20040S1008B1366 - 26 -
1 section 5.7(a) who believes that the removal of coal has caused
2 mine subsidence resulting in damage to such public road and who
3 wishes to secure compensation for such damage shall notify the
4 mine operator thereof. The mine operator shall promptly notify
5 the department of each such claim the operator receives. If the
6 mine operator agrees that mine subsidence damaged the public
7 road, as claimed, the operator shall compensate the owner for
8 the damage in accordance with section 5.7(a) or with an
9 agreement in accordance with section 5.9 reached between the
10 parties either prior to mining or after the damage has occurred.
11 (b) If the parties are unable to agree as to the cause of
12 the damage or the reasonable cost of compensation, the owner of
13 the public road may file a claim in writing with the department,
14 a copy of which shall be sent to the mine operator. A claim
15 under this subsection must be filed within two years of the date
16 damage to the public road occurred or the date when the damage
17 is discovered by the owner of the public road, whichever is
18 later.
19 (c) The department shall make an investigation of a claim
20 within thirty days of receipt of the claim. The department
21 shall, within sixty days following the investigation, make a
22 determination in writing as to whether the damage was caused by
23 subsidence due to underground coal mining and, if so, the
24 reasonable cost of repairing or replacing the damaged road. If
25 the department finds the damage to be caused by mining, it shall
26 issue a written order directing the operator to compensate the
27 owner of the road.
28 (d) In no event shall the mine operator be liable for
29 compensation in an amount exceeding the cost of replacement of
30 the damaged public road.
20040S1008B1366 - 27 -
1 (e) If either the road owner or the mine operator is
2 aggrieved by an order issued by the department under this
3 section, that person shall have the right to appeal the order to
4 the Environmental Hearing Board within thirty days of receipt of
5 the order. The appeal of a mine operator shall not be considered
6 perfected unless within sixty days of the date the mine operator
7 received the department's order, the operator has deposited an
8 amount equal to the amount of compensation ordered by the
9 department in an interest-bearing escrow account administered
10 for such purposes by the department.
11 (f) If the mine operator fails to compensate for subsidence
12 damage within six months or fails to perfect an appeal of the
13 department's order directing compensation, the department shall
14 issue an order or take an action as necessary to compel
15 compliance with the requirements of this act, including, but not
16 limited to, cessation orders and permit revocation. If the mine
17 operator fails to compensate for damage after exhausting its
18 right of appeal, the department shall pay the escrow deposit
19 made with respect to the particular claim involved and accrued
20 interest to the owner of the damaged road.
21 (g) Except as provided in subsection (f), the existence of
22 unresolved claims of subsidence damage shall not be used by the
23 department as a basis for withholding permits from or suspending
24 review of permit applications submitted by a mine operator
25 against whom such claims have been made.
26 Section 5.9. Voluntary agreements for compensation for
27 damages to public roads caused by underground mining.--(a)
28 Nothing contained in this act shall prohibit the mine operator
29 and the owner of the public road at any time after the effective
30 date of this section from voluntarily entering into an agreement
20040S1008B1366 - 28 -
1 establishing the manner and means by which compensation for
2 subsidence damage is to be provided. Any release contained in
3 such an agreement shall only be valid in releasing the operator
4 from liability under this act if it clearly states what rights
5 are established by this act and the road's owner expressly
6 acknowledges the release as consideration for the alternate
7 remedies provided under this act, except that such remedies
8 shall be no less than those reasonably necessary to compensate
9 the owner of the road for the reasonable cost of its repair or
10 the reasonable cost of its replacement where the damage is
11 irreparable. Any such release shall be null and void if no
12 mining occurs for a period of thirty-five years within the coal
13 field of which the coal underlying the affected public road
14 forms a part.
15 (b) The duty created by section 5.8 to compensate for
16 subsidence damage to the public roads enumerated in section
17 5.7(a) shall not be the sole and exclusive administrative remedy
18 for such damage: Provided, further, That nothing contained in
19 this act shall prevent the owner of any public road who claims
20 damage thereto from subsidence from seeking any other remedy
21 that may be provided in law or equity. In any proceedings in
22 pursuit of a remedy other than as provided under this act, the
23 mine operator against whom liability is sought to be imposed may
24 assert only those defenses specifically set forth in this act
25 and waives, as a privilege of being granted a permit to conduct
26 underground mining activities in this Commonwealth, any defense
27 based on any right or waiver arising from provisions contained
28 in deeds, leases or agreements pertaining to mining rights or
29 coal ownership on the property in question. Any defense or
30 waiver of rights contained in any severance deed shall be null
20040S1008B1366 - 29 -
1 and void as a defense to subsidence damage to a road by an
2 operator granted a permit under this act.
3 Section 6. Section 6(b) of the act, amended June 22, 1994
4 (P.L.357, No.54), is amended to read:
5 Section 6. Repair of damage or satisfaction of claims;
6 revocation or suspension of permit; bond or collateral.--
7 (b) The department shall require the applicant to file a
8 bond in a form prescribed by the secretary payable to the
9 Commonwealth and conditioned upon the applicant's faithful
10 performance of mining or mining operations, in accordance with
11 the provisions of sections 5, 5.1, 5.2, 5.3, 5.4, 5.5 [and
12 5.6.], 5.6, 5.7, 5.8 and 5.9. Such bond shall be in [a
13 reasonable amount as determined by the department.] an amount
14 that will be adequate to cover all subsidence damage anticipated
15 by the mine operator and identified in the permit application
16 and for the term of the permit, to ensure that the mine operator
17 can repair all subsidence damage anticipated during the life of
18 the permit, as well as replace all water supplies contaminated,
19 diminished or interrupted by the subsidence. The amount of the
20 bond shall not be less than the total estimated cost of
21 repairing or of necessary replacing the anticipated damage to
22 each dwelling, structure, building or other surface feature,
23 including surface waters, which is likely to sustain damage by
24 subsidence or from subsidence mitigation measures during the
25 term of the mining operation. For each such dwelling, structure,
26 building or other surface feature, including surface waters, the
27 operator shall bear the burden of establishing the anticipated
28 cost of repair or replacement. Liability under such bond shall
29 continue for the duration of the mining or mining operation, and
30 for a period of ten years thereafter or such longer period of
20040S1008B1366 - 30 -
1 time as may be prescribed by rules and regulations promulgated
2 hereunder, at which time the bond shall become of no force and
3 effect, and it, or any cash or securities substituted for it as
4 hereinafter provided, shall be returned to the applicant. Upon
5 application of any proper party in interest, the department,
6 after due notice to any person who may be affected thereby, and
7 hearing, in accordance with the provisions of section 5(g), may
8 order the amount of said bond to be increased or reduced or may
9 excuse the permit holder from any further duty of keeping in
10 effect any bond furnished pursuant to a prior order of the
11 department and return said bond, or the securities or cash
12 posted in lieu thereof, to the permit holder, notwithstanding
13 any different provision herein respecting the duration or term
14 of said bond. Such bond shall be executed by the applicant and a
15 corporate surety licensed to do business in the Commonwealth:
16 Provided, however, That the applicant may elect to deposit cash,
17 automatically renewable irrevocable bank letters of credit which
18 may be terminated by the bank at the end of a term only upon the
19 bank giving ninety days prior written notice to the permittee
20 and the department or negotiable bonds of the United States
21 Government or the Commonwealth of Pennsylvania, the Pennsylvania
22 Turnpike Commission, the General State Authority, the State
23 Public School Building Authority, or any municipality within the
24 Commonwealth, with the department in lieu of a corporate surety.
25 The cash deposit or irrevocable letter of credit or market value
26 of such negotiable bonds shall be at least equal to the sum of
27 the bond. Where the mining operation is reasonably anticipated
28 to continue for a period of at least ten years from the date of
29 application, the operator may, as an alternative, deposit
30 collateral and file a collateral bond as provided for in this
20040S1008B1366 - 31 -
1 section according to the following phased deposit schedule. The
2 operator shall, prior to commencing operations, deposit ten
3 thousand dollars ($10,000.00) or 25% of the amount determined
4 under this subsection, whichever is greater. The operator shall
5 thereafter annually deposit 10% of the remaining bond amount for
6 ten years. Interest accumulated by such collateral shall become
7 a part of the bond. The department may require additional
8 bonding at any time to meet the intent of this subsection. The
9 collateral shall be deposited, in trust, with the State
10 Treasurer, or with a bank, selected by the department, which
11 shall act as trustee for the benefit of the Commonwealth,
12 according to rules and regulations promulgated hereunder, to
13 guarantee the operator's compliance with this act. The operator
14 shall be required to pay all costs of the trust. The collateral
15 deposit, or part thereof, shall be released of liability and
16 returned to the operator, together with a proportional share of
17 accumulated interest, upon the conditions of and pursuant to the
18 schedule for release provided for by rules and regulations
19 promulgated hereunder. In lieu of, or in addition to, the bond
20 required by this section, the department may require the
21 operator of an underground mining operation to purchase
22 subsidence insurance, as provided by the act of August 23, 1961
23 (P.L.1068, No.484), entitled, as amended, "An act to provide for
24 the creation and administration of a Coal and Clay Mine
25 Subsidence Insurance Fund within the Department of Environmental
26 Resources for the insurance of compensation for damages to
27 subscribers thereto; declaring false oaths by the subscribers to
28 be misdemeanors; providing penalties for the violation thereof;
29 and making an appropriation," if the department determines that
30 the financial stability of the operator may be jeopardized by
20040S1008B1366 - 32 -
1 future economic conditions for the benefit of all surface
2 property owners who may be affected by damage caused by
3 subsidence. The insurance coverage shall be in an amount
4 determined by the department to be sufficient to remedy any and
5 all damage. The term of this obligation shall be for the
6 duration of the mining and reclamation operation and for ten
7 years thereafter. For all other surface effects of underground
8 mining, the operator shall post a bond as required by this
9 section. The department shall, upon receipt of any such deposit
10 of cash or irrevocable letter of credit or negotiable bonds,
11 immediately place the same with the State Treasurer, whose duty
12 it shall be to receive and hold the same in the name of the
13 Commonwealth, in trust, for the purposes for which such deposit
14 is made. The State Treasurer shall at all times be responsible
15 for the custody and safekeeping of such deposits. The applicant
16 making the deposit shall be entitled from time to time to demand
17 and receive from the State Treasurer, on the written order of
18 the department, the whole or any portion of any collateral so
19 deposited, upon depositing with him, in lieu thereof, other
20 collateral of the classes herein specified having a market value
21 at least equal to the sum of the bond, and also to demand,
22 receive and recover the interest and income from said negotiable
23 bonds as the same become due and payable: Provided, however,
24 That where negotiable bonds, deposited as aforesaid, mature or
25 are called, the State Treasurer, at the request of the
26 applicant, shall convert such negotiable bonds into such other
27 negotiable bonds of the classes herein specified as may be
28 designated by the applicant: And provided further, That where
29 notice of intent to terminate a letter of credit is given, the
30 department shall give the permittee thirty days written notice
20040S1008B1366 - 33 -
1 to replace the letter of credit with other acceptable bond
2 guarantees as provided herein, and if the permittee fails to
3 replace the letter of credit within the thirty-day notification
4 period, the department shall draw upon and convert such letter
5 of credit into cash and hold it as a collateral bond guarantee.
6 The department, in its discretion, may accept a self-bond
7 from the permittee, without separate surety, if the permittee
8 demonstrates to the satisfaction of the department a history of
9 financial solvency, continuous business operation and continuous
10 efforts to achieve compliance with all United States of America
11 and Pennsylvania environmental laws, and, meets all of the
12 following requirements:
13 (1) The permittee shall be incorporated or authorized to do
14 business in Pennsylvania and shall designate an agent in
15 Pennsylvania to receive service of suits, claims, demands or
16 other legal process.
17 (2) The permittee or if the permittee does not issue
18 separate audited financial statements, its parent, shall provide
19 audited financial statements for at least its most recent three
20 fiscal years prepared by a certified public accountant in
21 accordance with generally accepted accounting principles. Upon
22 request of the permittee, the department shall maintain the
23 confidentiality of such financial statements if the same are not
24 otherwise disclosed to other government agencies or the public.
25 (3) During the last thirty-six calendar months, the
26 applicant has not defaulted in the payment of any dividend or
27 sinking fund installment or preferred stock or installment on
28 any indebtedness for borrowed money or payment of rentals under
29 long-term leases or any reclamation fee payment currently due
30 under the Federal Surface Mining Control and Reclamation Act of
20040S1008B1366 - 34 -
1 1977, 30 U.S.C. § 1232, for each ton of coal produced in the
2 Commonwealth of Pennsylvania.
3 (4) The permittee shall have been in business and operating
4 no less than ten years prior to filing of application unless the
5 permittee's existence results from a reorganization,
6 consolidation or merger involving a company with such longevity.
7 However, the permittee shall be deemed to have met this
8 requirement if it is a majority-owned subsidiary of a
9 corporation which has such a ten-year business history.
10 (5) The permittee shall have a net worth of at least six
11 times the aggregate amount of all bonds applied for by the
12 operator under this section.
13 (6) The permittee shall give immediate notice to the
14 department of any significant change in managing control of the
15 company.
16 (7) A corporate officer of the permittee shall certify to
17 the department that forfeiture of the aggregate amounts of self-
18 bonds furnished for all operations hereunder would not
19 materially affect the permittee's ability to remain in business
20 or endanger its cash flow to the extent it could not meet its
21 current obligations.
22 (8) The permittee may be required by the department to
23 pledge real and personal property to guarantee the permittee's
24 self-bond. The department is authorized to acquire and dispose
25 of such property in the event of a default to the bond
26 obligation and may use the moneys in the Bituminous Mine
27 Subsidence and Land Conservation Fund to administer this
28 provision.
29 (9) The permittee may be required to provide third party
30 guarantees or indemnifications of its self-bond obligations.
20040S1008B1366 - 35 -
1 (10) The permittee shall provide such other information
2 regarding its financial solvency, continuous business operation
3 and compliance with environmental laws as the department shall
4 require.
5 (11) An applicant shall certify to the department its
6 present intention to maintain its present corporate status for a
7 period in excess of five years.
8 (12) A permittee shall annually update the certifications
9 required hereunder and provide audited financial statements for
10 each fiscal year during which it furnishes self-bonds.
11 (13) The permittee shall pay an annual fee in the amount
12 determined by the department of the cost to review and verify
13 the permittee's application for self-bonding and annual
14 submissions thereafter.
15 * * *
16 Section 7. Section 7(a) of the act, amended October 10, 1980
17 (P.L.874, No.156), is amended to read:
18 Section 7. Jurisdiction; enforcement; rulemaking.--(a) All
19 bituminous coal mines or mining operations coming within the
20 provisions of this act shall be under the exclusive jurisdiction
21 of the [Department of Environmental Resources] department and
22 shall be conducted in accordance with this act, the act of July
23 17, 1961 (P.L.659, No.339), known as the "Pennsylvania
24 Bituminous Coal Mine Act," the act of November 10, 1965
25 (P.L.721, No.346), known as the "Pennsylvania Anthracite Coal
26 Mine Act," the act of July 9, 1976 (P.L.931, No.178), entitled
27 "An act providing for emergency medical personnel; employment of
28 emergency medical personnel and emergency communications in coal
29 mines," and with such reasonable rules and regulations as may be
30 deemed necessary by the department for the health and safety of
20040S1008B1366 - 36 -
1 those persons engaged in the work. The department shall have the
2 power to enforce the provisions of this act and the rules and
3 regulations promulgated hereunder by it.
4 * * *
5 Section 8. Section 9.1 of the act, added June 22, 1994
6 (P.L.357, No.54), is amended to read:
7 Section 9.1. Prevention of hazards to human safety and
8 [material] limitation on degree of damage to certain
9 buildings.--(a) [If the Department of Environmental Resources
10 determines and so notifies the mine operator that] The
11 department shall determine if a proposed mining technique or
12 extraction ratio will result in subsidence which creates an
13 imminent hazard to human safety and notify the mine operator of
14 its conclusion in regard thereto. If the department concludes
15 that there is such a hazard, utilization of such technique or
16 extraction ratio shall not be permitted unless the mine
17 operator, prior to mining, takes measures approved by the
18 department to eliminate the imminent hazard to human safety.
19 (b) [If the department determines and so notifies] The
20 department shall determine and so notify the mine operator
21 [that] if a proposed mining technique or extraction ratio will
22 cause subsidence which will result in [irreparable] severe
23 damage to a building enumerated in section 5.4(a)(3) or (4)[,
24 utilization]. Utilization of such technique or extraction ratio
25 shall not be permitted unless the building owner, prior to
26 [mining] issuance of the permit, consents to such mining or the
27 mine operator, with the consent of the building owner and prior
28 to [mining] issuance of the permit, agrees to take measures
29 approved by the department to minimize [or reduce] impacts
30 resulting from subsidence [to] of such buildings.
20040S1008B1366 - 37 -
1 (c) Underground mining activities shall not be conducted
2 beneath or adjacent to:
3 (1) public buildings and facilities;
4 (2) churches, schools or hospitals;
5 (3) impoundments with a storage capacity of twenty acre-feet
6 or more; [or]
7 (4) bodies of water with a volume of twenty acre-feet or
8 more;
9 (5) any property listed on the National Register of Historic
10 Places, any property determined by the Pennsylvania Historical
11 and Museum Commission to be eligible for such a listing and any
12 other property otherwise determined to be of historic or
13 archeological importance; or
14 (6) public utilities, including, but not limited to, gas,
15 electric and water lines, unless the mine operator has made
16 adequate arrangements with the operator of such utility, prior
17 to the issuance of a permit by the department, so as to assure
18 that the utility will be protected to the satisfaction of the
19 operator of the utility: Provided, That all costs associated
20 with protection of such public utilities shall be borne by the
21 mine operator;
22 unless the subsidence control plan demonstrates that subsidence
23 will not cause [material] significant damage to or reduce the
24 reasonably foreseeable use of such features or facilities. If
25 the department determines that it is necessary in order to
26 minimize the potential for [material] significant damage to the
27 features or facilities described above or to any aquifer or body
28 of water that serves as a significant water source for any
29 public water supply system, it may limit the percentage of coal
30 extracted under or adjacent thereto.
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1 (d) Nothing in this act shall be construed to amend, modify
2 or otherwise supersede standards related to prevailing
3 hydrologic balance contained in the Surface Mining Control and
4 Reclamation Act of 1977 (Public Law 95-87, 30 U.S.C. § 1201 et
5 seq.) and regulations promulgated by the Environmental Quality
6 Board for the purpose of obtaining or maintaining primary
7 jurisdiction over the enforcement and administration of that act
8 nor any standard contained in the act of June 22, 1937
9 (P.L.1987, No.394), known as "The Clean Streams Law," or any
10 regulation promulgated thereunder by the Environmental Quality
11 Board.
12 (e) As used in this section, the following words and phrases
13 shall have the meanings given to them in this subsection:
14 "Imminent hazard to human safety." Subsidence of homes,
15 dwellings, roads, buildings or other surface features which
16 could result in injury to the occupants or users thereof.
17 "Severe damage." Damage for which the cost of repair of a
18 dwelling, structure, building or other surface feature exceeds
19 twenty percent of the fair market value of the structure prior
20 to mining.
21 "Significant damage." Damage for which the cost of repair or
22 restoration to a structure or surface feature exceeds fifteen
23 percent of its replacement cost.
24 Section 9. Section 18 of the act, amended October 10, 1980
25 (P.L.874, No.156), is amended to read:
26 Section 18. Legislative oversight.--(a) In order to
27 maintain primary jurisdiction over surface coal mining in
28 Pennsylvania pursuant to the Surface Mining Control and
29 Reclamation Act of 1977, Public Law 95-87, the Environmental
30 Quality Board shall have the authority to adopt initial
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1 regulations on an emergency basis in accordance with section
2 204(3) (relating to omission of notice of proposed rule making)
3 of the act of July 31, 1968 (P.L.769, No.240), referred to as
4 the Commonwealth Documents Law. Provided, however, within thirty
5 days after the Secretary of the United States Department of
6 Interior grants such primary jurisdiction to Pennsylvania, the
7 Environmental Quality Board shall repropose the regulations
8 adopted on an emergency basis, shall submit the regulations to
9 the [Senate Environmental Resources and House Mines and Energy
10 Management Committees of the General Assembly] Environmental
11 Resources and Energy Committee of the Senate and the
12 Environmental Resources and Energy Committee of the House of
13 Representatives for their review and comments, and shall
14 schedule public hearings within ninety days after such grant of
15 primary jurisdiction for the purpose of hearing public comment
16 on any appropriate revisions.
17 (b) At least thirty days prior to consideration by the
18 Environmental Quality Board of any revised regulations or any
19 new regulations under this act other than those initial
20 regulations promulgated on an emergency basis, the department
21 shall submit such regulation to the [Senate Environmental
22 Resources and House Mines and Energy Management Committees of
23 the General Assembly] Environmental Resources and Energy
24 Committee of the Senate and the Environmental Resources and
25 Energy Committee of the House of Representatives for their
26 review and comment.
27 Section 10. Section 18.1 of the act, added June 22, 1994
28 (P.L.357, No.54), is amended to read:
29 Section 18.1. Compilation and analysis of data.--(a) The
30 department shall conduct postmining inspections on all
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1 undermined properties to determine the degree of structural
2 damage, completion of repairs or replacements and effectiveness
3 of repairs and replacements. As a part of these inspections, the
4 department shall record repair costs, duration of the repair
5 period, type of water supply replacement and water supply
6 utilized. The department shall compile, on an ongoing basis, the
7 information so collected and the information contained in deep
8 mine permit applications, in monitoring reports and other data
9 submitted by operators, from enforcement actions and from any
10 other appropriate source for the purposes set forth below.
11 (b) Such data shall be analyzed by the department, utilizing
12 the services of professionals or institutions recognized in the
13 field, for the purpose of determining, to the extent possible,
14 the effects of deep mining on subsidence of surface structures
15 and features and on water resources, including sources of public
16 and private water supplies.
17 (c) The [analysis] analyses of such data and any relevant
18 findings shall be presented in report form to the Governor, the
19 General Assembly and to the Citizens Advisory Council of the
20 department at five-year intervals commencing in 1993.
21 (d) [Nothing contained herein shall be construed as
22 authorizing the department to require a mine operator to submit
23 additional information or data, except that it shall require
24 reporting of all water loss incidents or claims of water loss.]
25 The department, as part of its Annual Report Of Mining
26 Activities, shall report the numbers of all water loss incidents
27 or claims of water loss, numbers of incidents of road damage
28 from mine subsidence, the numbers of all incidents of subsidence
29 damage to surface structures or claims of structural damage from
30 mine subsidence on a county-by-county basis for each mine which
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1 is covered in the Annual Report Of Mining Activities.
2 (e) Beginning on the effective date of this subsection, as
3 part of all reports to the Governor, General Assembly and the
4 Citizens Advisory Council pursuant to subsection (c), the
5 department shall undertake a comprehensive evaluation of the
6 various techniques and methods employed by or on behalf of mine
7 operators to mitigate subsidence damage to roads and surface
8 structures, including surface waters, to determine the extent to
9 which these techniques and methods are effective in preventing
10 structural and nonstructural damage to surface structures and as
11 part thereof shall investigate and report on whether other
12 potential techniques and methods are available which would more
13 effectively prevent all types of subsidence-related damage to
14 surface structures.
15 Section 11. This amendatory act shall be known and may be
16 cited as the Coal Field Water and Property Protection Act.
17 Section 12. This act shall take effect in 60 days.
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