[35 Pa.B. 5775]
[Continued from previous Web Page]
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE I. LAND RESOURCES
CHAPTER 86. SURFACE AND UNDERGROUND COAL MINING: GENERAL
Subchapter A. GENERAL PROVISIONS § 86.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Underground mining activities--Includes the following:
(i) Surface operations incident to underground extraction of coal or in situ processing, such as construction, use, maintenance and reclamation of roads, aboveground repair areas, storage areas, processing areas, shipping areas, areas upon which are sited support facilities, including hoist and ventilating ducts, area used for the disposal and storage of waste and areas on which materials incident to underground mining operations are placed.
(ii) Underground operations such as underground construction, operation and reclamation of shafts, adits, support facilities located underground, in situ processing and underground mining, hauling, storage and blasting.
(iii) Operation of a mine, including preparatory work in connection with the opening and reopening of a mine, backfilling, sealing and other closing procedures, postclosure mine pool maintenance and any other work done on land or water in connection with a mine.
* * * * *
Subchapter F. BONDING AND INSURANCE REQUIREMENTS
AMOUNT AND DURATION OF LIABILITY § 86.151. Period of liability.
(a) Liability under bonds posted for a coal surface mining activity shall continue for the duration of the mining activities and its reclamation as provided in the acts, regulations adopted thereunder and the conditions of the permit and for 5 additional years after completion of augmented seeding, fertilization, irrigation or other work necessary to achieve permanent revegetation of the permit area.
(b) Liability under bonds posted for the surface effects of an underground mine, coal preparation activity or other long-term facility shall continue for the duration of the mining operation or use of the facility, its reclamation as provided in the acts, regulations adopted thereunder and the conditions of the permit, and for 5 years thereafter, except for:
(1) The risk of water pollution for which liability under the bond shall continue for a period of time after completion of the mining and reclamation operation. This period of time will be determined by the Department on a case-by-case basis.
(2) The risk of subsidence from bituminous underground mines for which liability under the bond shall continue for 10 years after completion of underground mining operations.
(c) Liability under bonds posted for coal refuse disposal activities shall continue for the duration of the activities and for 5 years after the last year of augmented seeding and fertilizing and other work to complete reclamation to meet the requirements of the acts, regulations adopted thereunder, the conditions of the permit and to otherwise protect the environment. Liability under the bond related to the risk of water pollution from activities shall continue for a period of time after completion of the coal refuse disposal activities. This period of time will be determined by the Department on a case-by-case basis.
(d) The extended period of liability which begins upon completion of augmenting seeding, fertilization, irrigation or other work necessary to achieve permanent revegetation of the permit area shall include additional time taken by the permittee to repeat augmented seeding, fertilization, irrigation or other work under a requirement by the Department but may not include selective husbandry practices approved by the Department, such as pest and vermin control, pruning, repair of rills and gullies or reseeding or transplanting, or both, which constitute normal conservation practices within the region for other land with similar land uses. Augmented seeding, fertilization, irrigation and repair of rills and gullies performed at levels or degrees of management which exceed those normally applied in maintaining use or productivity of comparable unmined land in the surrounding area, would necessitate extending the period of liability.
(e) A portion of a permit area requiring extended liability may be separated from the original area and bonded separately upon approval by the Department. Before determining that extended liability should apply to only a portion of the original permit area, the Department will determine that the area portion is:
(1) Not significant in extent in relation to the entire area under bond.
(2) Limited to a distinguishable contiguous portion of the permit area.
(f) If the Department approves a long-term intensive agricultural postmining land use, in accordance with § 87.159, § 88.133, § 88.221, § 88.334, § 88.381, § 88.492,§ 89.88 or § 90.165, the 5-year period of extended liability shall commence at the date of initial planting for the long-term intensive agricultural land use.
(g) If the Department issues a written finding approving a long-term intensive agricultural land use, the operation shall be exempt from the requirements of § 87.147(b), § 88.121(b), § 88.209(b), § 88.322(b), § 88.492,§ 89.86 or § 90.150(b). A finding does not constitute a grant of an exception to the bond liability periods of this section.
(h) The bond liability of the permittee shall include only those actions which the operator is obliged to take under the permit, including completion of the reclama- tion plan so that the land will be capable of supporting a postmining land use approved under § 87.159, § 88.133, § 88.221, § 88.334, § 88.381, § 88.492, § 89.88 or § 90.166.Implementation of an alternate postmining land use approved under these sections which is beyond the control of the permittee need not be covered by the bond.
(i) If an area is separated under subsection (e), that portion shall be bonded separately, and the applicable period of liability, in accordance with this section, shall begin again. The amount of bond on the original bonded area may be adjusted in accordance with § 86.152 (relating to adjustments).
(j) Release of any bond under this section does not alleviate the operator's responsibility to treat discharges of mine drainage emanating from or hydrologically connected to the site, to the standards in the permit, the act, The Clean Streams Law, the Federal Water Pollution Control Act and the rules and regulations thereunder.
§ 86.152. Bond adjustments.
(a) The amount of bond required and the terms of the acceptance of the applicant's bond will be adjusted by the Department from time to time as the area requiring bond coverage is increased or decreased, or when the cost of future reclamation changes, or when the projected subsidence damage repair liability changes. The Department may specify periodic times or set a schedule for reevaluating and adjusting the bond amount to fulfill this requirement. This requirement shall only be binding upon the permittee and does not compel a third party, including surety companies, to provide additional bond coverage and does not extend the coverage of a subsidence bond beyond the requirements imposed by sections 5, 5.4, 5.5 and 5.6 of the Bituminous Mine Subsidence and Land Conservation Act.
(b) A permittee may request reduction of the required bond amount upon submission of evidence to the Department that warrants a reduction of the bond amount by proving that the permittee's method of operation or other circumstances will reduce the maximum estimated cost to the Department to complete the reclamation, restoration or abatement responsibilities.
(c) Bond adjustments which involve unaffected portions of a permit area upon which no reclamation liability has been incurred or permits that have not been activated and upon which no reclamation liability has been incurred, and bond adjustments which are based on revisions of the cost estimates of reclamation, are not subject to the procedures of §§ 86.170--86.172 (relating to scope; procedures for seeking release of bond; and criteria for release of bond), except as provided in § 86.172(b) and (c).
(d) The Department will notify the permittee, the surety and any person with a property interest in collateral who has requested the notification, of any proposed adjustment to the bond amount. The Department will also provide the permittee an opportunity for an informal conference on the adjustment.
CHAPTER 89. UNDERGROUND MINING OF COAL AND COAL PREPARATION FACILITIES
Subchapter A. EROSION AND SEDIMENTATION CONTROL
GENERAL PROVISIONS § 89.5. Definitions.
(a) The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Cropland--Land used for the production of adapted crops for harvest, along or in a rotation with grasses and legumes, and includes row crops, small grain crops, hay crops, nursery crops, orchard crops and other similar specialty crops.
Disturbed area--An area where vegetation, topsoil or overburden is removed or upon which topsoil, spoil, coal processing wastes, underground development wastes or noncoal waste is placed by coal mining operations.
* * * * * Dwelling--A building or other structure that, at the time subsidence occurs, is used either temporarily, occasionally, seasonally or permanently for human habitation.
EPACT structures--
(i) Structures that are subject to repair and compensation requirements under section 720(a) of the Surface Mining Control and Reclamation Act (30 U.S.C.A. § 1309a).
(ii) The term includes:
(A) Noncommercial buildings.
(B) Dwellings.
(C) Structures adjunct to or used in conjunction with dwellings, including, but not limited to:
(I) Garages.
(II) Storage sheds and barns.
(III) Greenhouses and related buildings.
(IV) Customer-owned utilities and cables.
(V) Fences and other enclosures.
(VI) Retaining walls.
(VII) Paved or improved patios.
(VIII) Walks and driveways.
(IX) Septic sewage treatment facilities.
(X) Inground swimming pools.
(XI) lot drainage and lawn and garden irrigation systems.
EPACT water supplies--
(i) Water supplies that are subject to replacement under section 720(a) of the Surface Mining Control and Reclamation Act, including drinking, domestic or residential water supplies in existence prior to the date of permit application.
(ii) The term includes water received from a well or spring and any appurtenant delivery system that provides water for direct human consumption or household use.
(iii) The term does not include wells and springs that serve only agricultural, commercial or industrial enterprises except to the extent the water supply is for direct human consumption or human sanitation, or domestic use.
Embankment--An artificial deposit of material that is raised above the natural surface of the land and used to contain, divert or store water, support roads or railways, or for other similar purposes.
* * * * * Permanent diversion--A diversion which is to remain after underground mining activities are completed and which has been approved for retention by the Department.
Permit area--The mine and surface areas where underground mining activities occur.
* * * * * Underground mining activities--Includes the following:
(i) Surface operations incident to underground extraction of coal or in situ processing, such as construction, use, maintenance and reclamation of roads, aboveground repair areas, storage areas, processing areas, shipping areas, areas upon which are sited support facilities, including hoist and ventilating ducts, areas used for the disposal and storage of waste and areas on which materials incident to underground mining operations are placed.
(ii) Underground operations such as underground construction, operation and reclamation of shafts, adits, support facilities located underground, in situ processing and underground mining, hauling, storage and blasting.
(iii) Operation of a mine including preparatory work in connection with the opening and reopening of a mine, backfilling, sealing, and other closing procedures, postclosure mine pool maintenance and any other work done on land or water in connection with a mine.
Underground mining operations--Underground construction, operation and reclamation of shafts, adits, support facilities located underground, in situ processing and underground mining, hauling, storage and blasting.
* * * * *
Subchapter F. SUBSIDENCE CONTROL AND WATER SUPPLY REPLACEMENT § 89.141. Subsidence control: application requirements.
* * * * * (d) Subsidence control plan. The permit application must include a subsidence control plan which describes the measures to be taken to control subsidence effects from the proposed underground mining operations. The plan must address the area in which structures, facilities or features may be materially damaged by mine subsidence. At a minimum, the plan must address all areas within a 30° angle of draw of underground mining operations which will occur during the 5-year term of the permit. The subsidence control plan must include the following information:
(1) A description of the method of coal removal, such as longwall mining, room and pillar mining, hydraulic mining or other extraction methods, including the size, sequence and timing for the development of underground workings.
(2) A narrative describing whether subsidence, if it is likely to occur, could cause material damage to or diminish the value or reasonably foreseeable use of any structures or could contaminate, diminish or interrupt water supplies.
(3) For each structure and feature, or class of structures and features, described in § 89.142a(c) (relating to subsidence control: performance standards), a detailed description of the measures to be taken to ensure that subsidence will not cause material damage to, or reduce the reasonably foreseeable uses of the structures or features.
(4) A description of the anticipated effects of planned subsidence, if any.
(5) A description of the measures to be taken to correct any subsidence-related material damage to the surface land.
(6) A description of the measures to be taken to prevent irreparable damage to the structures enumerated in § 89.142a(f)(1)(iii)--(v), if the structure owner does not consent to the damage.
(7) A description of the monitoring, if any, the operator will perform to determine the occurrence and extent of subsidence so that, when appropriate, other measures can be taken to prevent or reduce or correct damage in accordance with § 89.142a(e) and (f).
(8) A description of the measures to be taken to maximize mine stability and maintain the value and reasonably foreseeable use of the surface land.
(9) For EPACT structures other than noncommercial buildings protected under § 89.142a(c), a description of the methods to be employed in areas of planned subsidence to minimize damage or otherwise comply with § 89.142a(d)(1)(i).
(10) For EPACT structures other than noncommercial buildings protected under § 89.142a(c), a description of the subsidence control measures to be taken under § 89.142a(d)(1)(ii) to prevent subsidence and subsidence-related damage in areas where underground mining operations are not projected to result in planned subsidence.
(11) A description of the measures which will be taken to maintain the value and foreseeable uses of perennial streams which may be impacted by underground mining operations. The description shall include a discussion of the effectiveness of the proposed measures as related to prior underground mining operations under similar conditions.
(12) A description of the measures to be taken to prevent material damage to perennial streams and aquifers which serve as a significant source to a public water supply system.
(13) A description of utilities including type, nature of use, composition and approximate age of pipelines, and a description of the measures to be taken to minimize damage, destruction or disruption in utility service in accordance with § 89.142a(g).
(14) A description of applicable measures to be taken to control subsidence under other statutes, including:
(i) The act of December 22, 1959 (P. L. 1994, No. 729) (52 P. S. §§ 3101--3109).
(ii) The Oil and Gas Act (58 P. S. §§ 601.101--601.605).
(iii) Section 419 of the State Highway Law (36 P. S. § 670-419).
(iv) Section 1 of the act of June 1, 1933 (P. L. 1409, No. 296) (52 P. S. § 1501).
(15) Other information requested in accordance with the policies and procedures of the Department.
§ 89.142a. Subsidence control: performance standards.
(a) General requirements. Underground mining operations shall be planned and conducted in accordance with the following:
* * * * * (b) Structure surveys.
* * * * * (2) The operator will be relieved of the duty to conduct a premining survey if the operator submits evidence to the Department that:
(i) The operator notified the owner by certified mail or personal service of the landowner's rights as set forth in sections 5.4--5.6 of The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. §§ 1406.5d--1406.5f).
(ii) The operator attempted to conduct a survey.
(iii) The landowner failed to provide the operator with access to the site to conduct a survey within 10 days of receipt of the operator's notice of intent to conduct the survey.
(3) A landowner, who is notified of an operator's intent to conduct a premining or postmining survey in accordance with the notification procedures described in paragraph (2), should provide the operator access to the site for the purpose of conducting the survey within the time frame specified in paragraph (2) so the operator can do the following:
(i) Document the premining condition of the structure, assess the potential for material damage and plan appropriate damage minimization measures.
(ii) Determine the extent of subsidence damage and the scope of necessary repairs.
(c) Restrictions on underground mining.
(1) Unless the subsidence control plan demonstrates that subsidence will not cause material damage to, or reduce the reasonably foreseeable use of the structures and features listed in subparagraphs (i)--(v), no underground mining may be conducted beneath or adjacent to:
(i) Public buildings and facilities.
(ii) Churches, schools and hospitals.
(iii) Impoundments with a storage capacity of 20 acre-feet (2.47 hectare-meters) or more.
(iv) Bodies of water with a volume of 20 acre-feet (2.47 hectare-meters) or more.
(v) Bodies of water or aquifers which serve as significant sources to public water supply systems.
* * * * * (3) If the measures implemented by the operator cause material damage or reduce the reasonably foreseeable use of the structures or features listed in paragraph (1), the Department may suspend mining under or adjacent to these structures or features until the subsidence control plan is modified to ensure prevention of further material damage to these facilities or features.
(d) Protection of certain EPACT structures and agricultural structures.
(1) For EPACT structures other than noncommercial buildings protected under subsection (c):
(i) If an operator employs mining technology that provides for planned subsidence in a predictable and controlled manner, the operator shall take necessary and prudent measures, consistent with the mining method employed, to minimize material damage to the extent technologically and economically feasible to the structure, except when one of the following applies:
(A) The structure owner has consented, in writing, to allow material damage.
(B) The costs of these measures would exceed the anticipated cost of repairs and the anticipated damage will not constitute a threat to health or safety.
(ii) If an operator employs mining technology that does not result in planned subsidence in a predictable and controlled manner, the operator shall adopt measures consistent with known technology to prevent subsidence and subsidence-related damage to the extent technologically and economically feasible to the structure. Measures may include, but are not limited to:
(A) Backstowing or backfilling of voids.
(B) Leaving support pillars of coal.
(C) Leaving areas in which no coal is removed, including a description of the overlying area to be protected by leaving coal in place.
(D) Taking measures on the surface to prevent or minimize material damage or diminution in value of the surface.
(E) Other measures approved by the Department.
(2) If the Department determines and so notifies a mine operator that a proposed mining technique or extraction ratio will result in irreparable damage to a structure enumerated in subsection (f)(1)(iii)--(v), the operator may not use the technique or extraction ratio unless the building owner, prior to mining, consents to the mining or the operator, prior to mining, takes measures approved by the Department to minimize or reduce impacts resulting from subsidence to these structures.
(3) Nothing in paragraph (1) or (2) prohibits planned subsidence in a predictable and controlled manner or the standard method of room and pillar mining.
(e) Repair of damage to surface lands. To the extent technologically and economically feasible, the operator shall correct material damage to surface lands resulting from subsidence caused by the operator's underground mining operations.
(f) Repair of damage to structures.
(1) Repair or compensation for damage to certain structures. Whenever underground mining operations conducted on or after August 21, 1994, cause damage to any of the structures listed in subparagraphs (i)--(v), the operator responsible for extracting the coal shall promptly and fully rehabilitate, restore, replace or compensate the owner for material damage to the structures resulting from the subsidence unless the operator demonstrates to the Department's satisfaction that one of the provisions of § 89.144a (relating to subsidence control: relief from responsibility) relieves the operator of responsibility.
(i) Buildings that are accessible to the public including, but not limited to, commercial, industrial and recreational buildings and all structures that are securely attached to the land surface and adjunct to or used in conjunction with these buildings, including:
(A) Garages.
(B) Storage sheds and barns.
(C) Greenhouses and related buildings.
(D) Customer-owned utilities and cables.
(E) Fences and other enclosures.
(F) Retaining walls.
(G) Paved or improved patios.
(H) Walks and driveways.
(I) Septic sewage treatment facilities.
(J) Inground swimming pools.
(K) Lot drainage and lawn and garden irrigation systems.
(ii) Noncommercial buildings customarily used by the public, including, but not limited to, schools, churches and hospitals.
(iii) Dwellings which are used for human habitation and permanently affixed appurtenant structures or improvements. In the context of this paragraph, the phrase ''permanently affixed appurtenant structures or improvements'' includes, but is not limited to, structures adjunct to or used in conjunction with dwellings, such as:
(A) Garages.
(B) Storage sheds and barns.
(C) Greenhouses and related buildings.
(D) Customer-owned utilities and cables.
(E) Fences and other enclosures.
(F) Retaining walls.
(G) Paved or improved patios.
(H) Walks and driveways.
(I) Septic sewage treatment facilities.
(J) Inground swimming pools.
(K) Lot drainage and lawn and garden irrigation systems.
(iv) Barns and silos.
(v) Permanently affixed structures of 500 or more square feet (46.45 square meters) in area that are used for raising livestock, poultry or agricultural products, for storage of animal waste or for the processing or retail marketing of agricultural products produced on the farm on which the structures are located.
(2) Amount of compensation.
(i) If, rather than repair the damage, the operator compensates the structure owner for damage caused by the operator's underground mining operations, the operator shall provide compensation equal to the reasonable cost of repairing the structure or, if the structure is determined to be irreparably damaged, the compensation shall be equal to the reasonable cost of its replacement except for an irreparably damaged agricultural structure identified in paragraph (1)(iv) or (v) which at the time of damage was being used for a different purpose than the purpose for which the structure was originally constructed. For such an irreparably damaged agricultural structure, the operator may provide for the reasonable cost to replace the damaged structure with a structure satisfying the functions and purposes served by the damaged structure before the damage occurred if the operator can affirmatively prove that the structure was being used for a different purpose than the purpose for which the structure was originally constructed.
(ii) The operator shall compensate the occupants with an additional payment for reasonable, actual expenses incurred during their temporary relocation, if the occupants of a damaged structure are required to relocate. The operator shall also compensate the occupants for other actual, reasonable incidental costs agreed to by the parties or approved by the Department.
(g) Protection of utilities.
(1) Underground mining operations shall be planned and conducted in a manner which minimizes damage, destruction or disruption in services provided by oil, gas and water wells; oil, gas and coal slurry pipelines; rail lines; electric and telephone lines; and water and sewerage lines which pass under, over, or through the permit area, unless otherwise approved by the owner of the facilities and the Department.
* * * * * (h) Perennial streams.
(1) Underground mining operations shall be planned and conducted in a manner which maintains the value and reasonably foreseeable uses of perennial streams, such as aquatic life; water supply; and recreation, as they existed prior to coal extraction beneath streams.
(2) If the Department finds that the underground mining operations have adversely affected a perennial stream, the operator shall mitigate the adverse effects to the extent technologically and economically feasible, and, if necessary, file revised plans or other data to demonstrate that future underground mining operations will meet the requirements of paragraph (1).
(i) Prevention of hazards to human safety.
(1) The Department will suspend underground mining operations beneath urbanized areas; cities; towns; and communities and adjacent to or beneath industrial or commercial buildings; lined solid and hazardous waste disposal areas; major impoundments of 20 acre-feet (2.47 hectare-meters) or more; or perennial streams, if the operations present an imminent danger to the public.
* * * * * § 89.143a. Subsidence control: procedure for resolution of subsidence damage claims.
(a) The owner of a structure enumerated in § 89.142a(f)(1) (relating to subsidence control: performance standards) who believes that underground mining operations caused mine subsidence resulting in damage to the structure and who wishes to secure repair of the structure or compensation for the damage shall provide the operator responsible for the underground mining operations with notification of the damage to the structure.
(b) If the operator agrees that mine subsidence damaged the structure, the operator shall fully repair the damage or compensate the owner for the damage in accordance with either § 89.142a(f) or a voluntary agreement between the parties authorized by section 5.6 of The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § 1406.5f).
(c) If the parties are unable to agree as to the cause of the damage or the reasonable cost of repair or compensation for the structure, the owner of the structure may file a claim in writing with the Department. The owner of a structure that is not an EPACT structure shall file the claim within 2 years of the date the structure was damaged.
(d) Upon receipt of the claim, the Department will send a copy of the claim to the operator and conduct an investigation in accordance with the following procedure:
(1) Within 30 days of receipt of the claim, the Department will conduct an investigation to determine whether underground mining operations caused the subsidence damage to the structure and provide the results of its investigation to the property owner and mine operator within 10 days of completing the investigation.
(2) Within 60 days of completion of the investigation, the Department will determine, and set forth in writing, whether the damage is attributable to subsidence caused by the operator's underground mining operations and, if so, the reasonable cost of repairing or replacing the damaged structure.
(3) If the Department finds that the operator's underground mining operations caused the damage to the structure, the Department will either issue a written order directing the operator to promptly compensate the structure owner or issue an order directing the operator to promptly repair the damaged structure. The Department may extend the time for compliance with the order if the Department finds that further damage may occur to the same structure as a result of additional subsidence.
§ 89.144a. Subsidence control: relief from responsibility.
(a) Except as provided in subsection (b), the operator will not be required to repair a structure or compensate a structure owner for damage to structures identified in § 89.142a(f)(1) (relating to subsidence control: performance standards) if the operator demonstrates to the Department's satisfaction one or more of the following apply:
(1) The landowner denied the operator access to the property upon which the structure is located to conduct a premining survey or a postmining survey of the structure and surrounding property, and thereafter the operator served notice upon the landowner by certified mail or personal service. The operator shall demonstrate the following:
(i) The notice identified the rights established by sections 5.4--5.6 of The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. §§ 1406.5d--1406.5f).
(ii) The landowner denied the operator access to the site to conduct the survey within 10 days after the landowner's receipt of the notice.
(2) The operator's underground mining did not cause the damage.
(3) The operator and the landowner entered into a voluntary agreement that satisfies the requirements of section 5.6 of The Bituminous Mine Subsidence and Land Conservation Act.
(b) The relief in subsection (a)(1) will not apply in the case of an EPACT structure if the landowner or the Department can show, by a preponderance of evidence, that the damage resulted from the operator's underground mining operations.
(c) The operator is not responsible for the portion of structure damages which the operator can show, by a preponderance of evidence, could have been prevented had the structure owner provided the operator access to conduct a premining survey under § 89.142a (relating to subsidence control: performance standards) and implement necessary and prudent damage minimization measures.
§ 89.145a. Water supply replacement: performance standards.
(a) Water supply surveys.
(1) The operator shall conduct a premining survey and may conduct a postmining survey of the quantity and quality of all water supplies within the permit and adjacent areas, except when the landowner denies the operator access to the site to conduct a survey and the operator has complied with the notice procedure in this section. Premining surveys shall be conducted prior to the time a water supply is susceptible to mining-related effects. Survey information must include the following information to the extent that it can be collected without excessive inconvenience to the landowner:
(i) The location and type of water supply.
(ii) The existing and reasonably foreseeable uses of the water supply.
(iii) The chemical and physical characteristics of the water, including, at a minimum, total dissolved solids or specific conductance corrected to 25°C, pH, total iron, total manganese, hardness, total coliform, acidity, alkalinity and sulfates. An operator who obtains water samples in a premining or postmining survey shall utilize a certified laboratory to analyze the samples.
(iv) The quantity of the water.
(v) The physical description of the water supply, including the depth and diameter of the well, length of casing and description of the treatment and distribution systems.
(vi) Hydrogeologic data such as the static water level and yield determination.
(2) The operator shall submit copies of the results of the analyses, as well as the results of any quantitative analysis, to the Department and to the landowner within 30 days of their receipt by the operator.
(3) If the operator cannot make a premining or postmining survey because the owner will not allow access to the site, the operator shall submit evidence to the Department of the following:
(i) The operator notified the landowner by certified mail or personal service of the landowner's rights in sections 5.1--5.3 of The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. §§ 1406.5a--1406.5c), and the effect on the landowner of the landowner's denial to the operator of access to the site as described in section 5.2(d) of The Bituminous Mine Subsidence and Land Conservation Act.
(ii) The operator's attempt to conduct a survey.
(iii) The landowner failed to authorize access to the operator to conduct a survey within 10 days of receipt of the operator's notice of intent to conduct a survey.
(b) Restoration or replacement of water supplies. When underground mining activities conducted on or after August 21, 1994, affect a public or private water supply by contamination, diminution or interruption, the operator shall promptly restore or replace the affected water supply with a permanent alternate source which adequately serves the premining uses of the water supply and any reasonably foreseeable uses of the water supply. The operator shall be relieved of any responsibility under The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. §§ 1406.1--1406.21) to restore or replace a water supply if the operator demonstrates that one of the provisions of § 89.152 (relating to water supply replacement: special provisions) relieves the operator of further responsibility. This subsection does not apply to water supplies affected by underground mining activities which are covered by Chapter 87 (relating to surface mining of coal).
* * * * * (e) Temporary water supplies.
(1) If the affected water supply is within the rebuttable presumption area and the rebuttable presumption applies and the landowner or water user is without a readily available alternate source, the operator shall provide a temporary water supply within 24 hours of being contacted by the landowner or water supply user or the Department, whichever occurs first.
(2) An operator shall promptly provide a temporary water supply if the operator or the Department finds that the operator's underground mining activities have caused contamination, diminution or interruption of an EPACT water supply, and the landowner or water user is without a readily available alternate source of water. This requirement applies regardless of whether the water supply is located within, or outside of, the rebuttable presumption area.
(3) The temporary water supply provided under this subsection must meet the requirements of subsection (f)(2) and provide a sufficient amount of water to meet the water supply user's needs.
(f) Adequacy of permanently restored or replaced water supply. A permanently restored or replaced water supply shall include any well, spring, municipal water supply system or other supply approved by the Department, which meets the criteria for adequacy as follows:
(1) Reliability, maintenance and control. A restored or replaced water supply, at a minimum, must:
(i) Be as reliable as the previous water supply.
(ii) Be as permanent as the previous water supply.
(iii) Not require excessive maintenance.
(iv) Provide the owner and the user with as much control and accessibility as exercised over the previous water supply.
(2) Quality. A restored or replaced water supply will be deemed adequate when it differs in quality from the premining water supply, if it meets the Pennsylvania Safe Drinking Water Act (35 P. S. §§ 750.1--750.20), or is comparable to the premining water supply when that water supply did not meet these standards.
(3) Adequate quantity. A restored or replaced water supply will be deemed adequate in quantity if it meets one of the following:
(i) It delivers the amount of water necessary to satisfy the water user's needs and the demands of any reasonably foreseeable uses.
(ii) It is established through a connection to a public water supply system which is capable of delivering the amount of water necessary to satisfy the water user's needs and the demands of any reasonably foreseeable uses.
(iii) For purposes of this paragraph and with respect to agricultural water supplies, the term reasonably foreseeable uses includes the reasonable expansion of use where the water supply available prior to mining exceeded the farmer's actual use.
(4) Water source serviceability. A replacement of a water supply must include the installation of any piping, pumping equipment and treatment equipment necessary to put the replaced water source into service.
(5) Cost to landowner or water user. A restored or replacement water supply must meet the following costs criteria:
(i) The restored or replacement water supply may not cost the landowner or water user more to operate and maintain than the previous water supply.
(ii) If the operation and maintenance costs of the restored or replacement water supply are more than the operation and maintenance costs of the previous water supply, the operator shall provide for the permanent payment of the increased operating and maintenance cost of the restored or replacement water supply.
(iii) Upon agreement by the operator and the landowner or water user, the obligation to pay the increased operation and maintenance costs may be satisfied by a one-time payment in an amount which covers the present worth of the increased annual operation and maintenance costs for a period agreed to by the operator and the landowner or water user.
§ 89.146a. Water supply replacement: procedure for resolution of water supply damage claims.
(a) Whenever a landowner or water supply user experiences contamination, diminution or interruption of a water supply which is believed to have occurred as a result of underground mining activities, the landowner or water user shall notify the operator. The operator shall diligently investigate the water loss. This subsection does not apply to water supplies affected by underground mining activities which are governed by Chapter 87 (relating to surface mining of coal).
(b) The Department will order the operator to provide temporary water to the landowner or water supply user within 24 hours of issuance of the order if the following apply:
(1) No alternate temporary water supply is available to the landowner or water user.
(2) The water supply is contaminated, diminished or interrupted.
(3) The water supply is located within the rebuttable presumption area.
(4) The landowner notified the operator of the water supply problem.
(c) If the affected water supply has not been restored or an alternate water supply has not been provided by the operator or if the operator provides and later discontinues an alternate source, the landowner or water supply user may so notify the Department and request that the Department conduct an investigation in accordance with the following procedure:
(1) Within 10 days of notification, the Department will commence an investigation of landowner's or water supply user's claim.
(2) Within 45 days of notification, the Department will make a determination of whether the contamination, diminution or interruption was caused by the operator's underground mining activities. The Department will notify the affected parties of its determination within 10 days of completing the investigation.
(3) If the Department determines that the operator's underground mining activities caused the water supply to be contaminated, diminished or interrupted, the Department will issue any orders that are necessary to assure compliance with The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. §§ 1406.1--1406.21) and this chapter.
§ 89.152. Water supply replacement: special provisions.
(a) In the case of an EPACT water supply, an operator may not be required to restore or replace the water supply if one of the following has occurred:
(1) The Department has determined that a replacement water supply meeting the criteria in § 89.145a(f) (relating to water supply replacement: performance standards) cannot be developed and the operator has purchased the property for a sum equal to the property's fair market value immediately prior to the time the water supply was affected or has made a one-time payment equal to the difference between the property's fair market value determined immediately prior to the time the water supply was affected and the fair market value determined at the time payment is made.
(2) The landowner and operator have entered into a valid voluntary agreement under section 5.3(a)(5) of The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § 1406.5c(a)(5)) which does not require restoration or replacement of the water supply and the Department has determined that an adequate replacement water supply could feasibly be developed.
(3) The operator can demonstrate one of the following:
(i) The contamination, diminution or interruption existed prior to the underground mining activities as determined by a premining survey, and the operator's underground mining activities did not worsen the preexisting contamination, diminution or interruption.
(ii) The contamination, diminution or interruption occurred more than 3 years after underground mining activities occurred.
(iii) The contamination, diminution or interruption occurred as the result of some cause other than the underground mining activities.
(b) In the case of a water supply other than an EPACT water supply, an operator will not be required to restore or replace a water supply if the operator can demonstrate one of the following:
(1) The contamination, diminution or interruption existed prior to the underground mining activities as determined by a premining survey, and the operator's underground mining activities did not worsen the preexisting contamination, diminution or interruption.
(2) The contamination, diminution or interruption is due to underground mining activities which occurred more than 3 years prior to the onset of water supply contamination, diminution or interruption.
(3) The contamination, diminution or interruption occurred as the result of some cause other than the underground mining activities.
(4) The claim for contamination, diminution or interruption of the water supply was made more than 2 years after the water supply was adversely affected by the underground mining activities.
(5) That the operator has done one of the following:
(i) Has purchased the property for a sum equal to the property's fair market value immediately prior to the time the water supply was affected or has made a one-time payment equal to the difference between the property's fair market value determined immediately prior to the time the water supply was affected and the fair market value determined at the time payment is made.
(ii) The landowner and operator have entered into a valid voluntary agreement under section 5.3 of The Bituminous Mine Subsidence and Land Conservation Act which does not require restoration or replacement of the water supply or authorizes a lesser amount of compensation to the landowner than provided by section 5.3(a)(5) of The Bituminous Mine Subsidence and Land Conservation Act.
(c) This section does not apply to underground mining activities which are governed by Chapter 87 (relating to surface mining of coal).
[Pa.B. Doc. No. 05-1944. Filed for public inspection October 21, 2005, 9:00 a.m.]
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