§ 88.107a. Hydrologic balance: water rights and replacement.
(a) Water supply surveys. The operator or mine owner shall conduct a survey of the quantity and quality of all water supplies within the permit area and those in adjacent areas that may be affected by mining activities, except when the water supply owner denies the operator or mine owner access for the survey.
(1) The survey must include the following information to the extent that it can be collected without excessive inconvenience to the water supply owner or water supply user:
(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, acidity, alkalinity and sulfates. Additional parameters, including hardness and total coliform, may be required by the Department based on the local aquifer conditions and the characteristics of the water supply and uses. An operator or mine owner who obtains water samples in a premining or postmining survey shall utilize a certified laboratory to analyze the samples. For water supplies with existing treatment, the treatment system must be documented, and a chemical analysis of the untreated water shall be obtained if a sample that bypasses the treatment can feasibly be collected.
(iv) Historic and recent quantity measurements and other hydrogeologic data such as the static water level and yield determination.
(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) Sufficient sampling and other measurements to document the seasonal variation in hydrologic conditions of the water supply.
(2) The operator or mine owner shall submit the results of all qualitative analyses and quantity measurements gathered as part of a water supply survey to the Department and supply a copy to the water supply owner and water supply user prior to the issuance of a mining permit.
(3) A water supply survey shall be conducted prior to the time a water supply is susceptible to mining-related effects and shall be made part of the application for surface mining permit submitted to the Department. An update to the original survey may be required after permit issuance under the requirements of § 86.53 (relating to reporting of new information).
(4) If the operator or mine owner is prohibited from making a premining or postmining survey because the water supply owner will not allow access to the site, the operator or mine owner shall submit evidence to the Department of the following:
(i) The operator or mine owner notified the water supply owner by certified mail or personal service of the water supply owner’s rights and the effect on the water supply owner of the water supply owner’s denial to the operator or mine owner of access to the site under section 4.2 of SMCRA (52 P.S. § 1396.4b).
(ii) The operator or mine owner attempted to conduct a survey.
(iii) The water supply owner failed to authorize access to the operator or mine owner to conduct a survey prior to commencing mining activity.
(b) Water supply replacement obligations.
(1) The operator or mine owner of any mine who affects a water supply to any demonstrable extent by contamination, pollution, diminution or interruption shall promptly restore or replace the affected water supply with a permanent alternate supply adequate in water quantity and water quality for the purposes served by, and the reasonably foreseeable uses of, the water supply. The operator or mine owner shall provide to the Department, in writing, the description of the location of a restored or replaced water supply and the name and address of the water supply owner under the requirements of § 86.53.
(2) For any water supply that will, with a reasonable degree of certainty established by supporting evidence, be affected by contamination, pollution, diminution or interruption by the proposed mining, the operator or mine owner shall provide a replacement supply prior to commencing the activity.
(c) Temporary water supplies. If the affected water supply owner or water supply user whose supply is in the area of presumption as defined in subsection (j)(1) is without a readily available alternate source of water, the operator or mine owner shall provide a temporary water supply within 24 hours of being contacted by the water supply owner, water supply user or the Department, whichever occurs first. The temporary water supply provided under this subsection shall meet the quality requirements of subsection (f)(2) and provide sufficient quantity to meet the water supply owner or water supply user’s premining needs. The requirement for a temporary water supply may be subject to a preliminary determination by the Department.
(d) Immediate replacement of water supply by the Department.
(1) If the Department finds that immediate replacement of an affected water supply used for potable or domestic purposes is required to protect public health or safety and the operator or mine owner has failed to comply with an order issued under section 4.2(f) of SMCRA, the Department may use moneys from the Surface Mining Conservation and Reclamation Fund to restore or replace the affected water supply.
(2) The Department will recover the costs of restoration or replacement, the costs of temporary water supply and costs incurred for design and construction of facilities from the responsible operator or mine owner. Costs recovered will be deposited in the Surface Mining Conservation and Reclamation Fund.
(e) Reimbursement. If a water supply is restored or replaced by the water supply owner or water supply user prior to establishing that mining activity is responsible for the pollution or diminution, the responsible operator or mine owner shall reimburse the water supply owner or water supply user the cost of replacing or restoring the supply including payment of operation and maintenance costs as described in subsection (g). If the operator or mine owner disputes the cost as presented by the water supply owner or water supply user, the operator or mine owner may present to the Department comparable estimates meeting the requirements of subsection (b)(1) from three water supply installers in the area. The Department will determine fair cost of reimbursement based upon these estimates and any other applicable information. Without affecting a water supply owner’s or water supply user’s other rights consistent with subsection (l), an affected water supply owner or water supply user may make a reimbursement claim to the Department against an operator or mine owner only until final release of the reclamation bond for the site.
(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 following criteria for adequacy:
(1) Reliability, maintenance and control. As documented in the premining water supply survey, a restored or replaced water supply, at a minimum, shall:
(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 water supply owner and the water supply user with as much control and accessibility as exercised over the previous water supply.
(v) Not result in increased cost of operation and maintenance for the water supply owner or water supply user, unless the operator or mine owner has provided for payment of the increased cost as described under subsection (g).
(2) Quality. A restored or replaced water supply will be deemed adequate in quality if it meets the following:
(i) For a domestic supply, the Pennsylvania Safe Drinking Water Act (35 P.S. § § 721.1—721.17) standards, or a quality comparable to the premining water supply if that water supply did not meet these standards. The Department may require that the quality of the restored or replaced water supply be equivalent to the premining supply in particular circumstances where the water supply owner or water supply user has demonstrated that this standard is necessary for the purposes served by the current supply.
(ii) For other than a domestic supply, the premining quality established by the water supply survey data or an adequate quality of water needed for the purposes served by and the reasonably foreseeable uses of the supply.
(3) Quantity. For purposes of this paragraph the term ‘‘reasonably foreseeable uses’’ includes the reasonable expansion of use where the quantity of the water supply available prior to mining was adequate to supply the foreseeable uses. 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 purposes served by the supply as documented in the water supply survey including the demands of any reasonably foreseeable uses. The Department will not accept the use of water storage systems in conjunction with the replaced or restored supply to meet quantity requirements, unless the operator or mine owner can demonstrate the existence of no reasonable alternative.
(ii) It is established through a connection to a public water supply system that is capable of delivering the amount of water necessary to satisfy the water supply owner’s or water supply user’s needs and the demands of any reasonably foreseeable uses.
(4) Water source serviceability. Replacement of a water supply shall include the installation of all piping, pumping equipment and treatment equipment necessary to put the replaced water source into service.
(g) Increased operation and maintenance costs. If the operation and maintenance costs of the restored or replaced water supply are more than those of the previous supply, the operator or mine owner shall provide for the permanent payment of the increased operation and maintenance costs of the restored or replaced water supply in accordance with the following procedure:
(1) Determining costs. The Department will determine the amount of the annual increase in operation and maintenance costs of the restored or replaced water supply based on current actual uses of the water supply.
(i) In consultation with the water supply owner or water supply user, the operator shall use a minimum of 6 months of data, including high and low use periods, to ascertain the cost of operating and maintaining the replacement water supply. The data collection period should not exceed 1 year from the date the replacement water supply is functional unless the Department determines a reason to extend the period. During this collection period, the operator or mine owner pays the operation and maintenance costs.
(ii) Within 30 days after the end of the data collection period, the operator or mine owner shall submit to the Department, and to the water supply owner by certified mail, the operator’s or mine owner’s calculation of the annual increased operation and maintenance costs and a plan for payment of these costs. The water supply owner may respond to the proposed calculation of costs within 30 days from receipt of the certified mail.
(iii) The Department will review the operator’s or mine owner’s information, the water supply owner’s information and any other information the Department deems relevant and will determine the amount of annual increase in operation and maintenance costs.
(iv) In determining the amount of annual increase in operation and maintenance costs, the Department will take into account contingencies and the precision of the cost estimates.
(2) Provisions for payment. Within 60 days of the Department’s determination of the annual increased cost, the operator shall post a surety or collateral bond in an amount calculated in accordance with paragraph (3). This bond is subject to the following provisions:
(i) The bond shall be submitted on a form prepared by the Department, separate from the designated reclamation bond.
(ii) The bond amount will be reviewed and adjusted as necessary and in accordance with § 86.152 (relating to bond adjustments) at an interval no less than every 5 years in conjunction with the permit renewal.
(iii) A replacement bond must be posted by any successor operator of the associated permit.
(iv) If a water supply operation and maintenance costs bond is forfeited, money received from the forfeiture of the bond can be used only for the water supply for which the Department forfeited the bond unless this supply has since been abandoned. The money will be paid by the Department to the current water supply owner as a settlement of the water supply owner’s claim for increased operation and maintenance costs for the water supply for which the bond was forfeited. If a permittee has posted a bond for multiple water supplies, the moneys will be paid to the water supply owners on a prorated basis, based on the respective operation and maintenance costs.
(3) Bond calculation. Calculation of the amount of bond necessary to assure payment of operation and maintenance costs will be accomplished through the following procedure:
(i) The annual increased operation and maintenance costs are determined as in paragraph (1).
(ii) This cost is then projected through 1 year beyond the term of the associated permit accounting for inflation through this time period. The following formula is used to calculate the projected costs.
OMx = OM * (1 + E)x
Where:
OMx is the projected cost for operation and maintenance,
OM is the annual increased operation and maintenance costs,
E is inflation rate based on the average Consumer Price Index as a decimal,
x is years to renewal plus one.
(iii) The projected cost is then used to calculate bond value that is necessary to assure payment of operation and maintenance costs. This bond value can be established by using the projected cost determined in subparagraph (ii) in the following formula:
Bond = OMx /(i - E)
1 + EWhere:
Bond is the present value of the funds needed to cover increased operation and maintenance costs in perpetuity,
i is the historic, long-term rate of return on investments based on Treasury Bills as a decimal,
OMx and E are defined as in subparagraph (ii).
(iv) The Department will annually recalculate values for the variables i and E used in the previous formulas and publish these values in the Pennsylvania Bulletin.
(4) Release of obligation. A voluntary agreement between the water supply owner and the operator or mine owner may be executed at any time. This agreement shall include a notarized statement signed by the water supply owner that documents the settlement of increased operation and maintenance costs to the satisfaction of all parties. This agreement shall be on forms provided by the Department and recorded with the deed to the property, with an original signed, recorded document submitted to the Department upon completion. Upon receipt of the fully executed and recorded release, the Department will consider the operator’s or mine owner’s obligation to pay increased operation and maintenance costs for the water supply to be satisfied and any bonds posted for this supply can be released.
(h) Special provisions for operation and maintenance costs.
(1) Should ownership of the affected water supply change, the operator or mine owner must continue to pay the increased operation and maintenance costs unless a release outlined in subsection (g)(4) is executed.
(2) An operator who incurs the obligation to pay for increased operation and maintenance costs for multiple water supplies may post one bond that covers the increased operation and maintenance costs for multiple water supplies. The procedures for calculating this bond amount shall be consistent with a single supply bond value as described in subsection (g)(3) but the bond amount must be sufficient to provide for the payment for each water supply in the event that the operator defaults on the legal obligation of permanent payment.
(i) Waivers.
(1) The requirement to restore or replace an affected water supply may be waived by the Department if the Department determines that the affected water supply is to be abandoned whereby a replacement is no longer needed based on the approved post-mining land use.
(2) If a water supply is to be abandoned as in paragraph (1), a notarized written statement signed by all persons who possess an ownership interest in the water supply shall be submitted to the Department establishing that the individuals knowingly and willingly agree to abandon the water supply. This document shall be recorded with the deed to the property at the office of the recorder of deeds.
(j) Presumption of liability.
(1) It shall be presumed, as a matter of law, that a surface mine operator or owner is responsible without proof of fault, negligence or causation for all pollution and diminution, except for bacteriological contamination, of public or private water supplies within 1,000 linear feet (304.80 meters) of the boundaries of any areas affected by surface mining activities whether or not permitted, including all reclaimed areas that underwent these activities. Areas utilized solely for haul and access roads shall not be included in the presumption area.
(2) Other than if the operator, mine owner or the Department determines that the water supply is not within the 1,000-foot area as described in paragraph (1), the presumption is voided if the operator or mine owner can affirmatively prove by a preponderance of the evidence one or more of the following:
(i) The water supply owner refused to allow the operator or mine owner access to conduct a water supply survey prior to commencing surface mining activities.
(ii) The water supply owner or water supply user refused to allow the operator or mine owner access to determine the cause of pollution or diminution or to replace or restore the water supply.
(iii) The pollution or diminution existed prior to the surface mining activities as evidenced by a water supply survey conducted prior to commencing surface mining activities and as documented in the approved surface mine permit application submitted to the Department prior to permit issuance.
(iv) The pollution or diminution is not the result of the surface mining activities.
(3) If the operator or mine owner intends to demonstrate the presumption of liability is not applicable, they shall notify the Department and provide information in support of the demonstration. If asserting that access was denied, evidence must be provided showing that the water supply owner was notified by certified mail or personal service that the refusal of access to conduct a water supply survey or assessment may be used to rebut the presumption of liability. The Department will consider information provided under this paragraph in determining if mining activity caused the pollution or diminution and make a determination within 90 days of the operator’s or mine owner’s submissions.
(k) Operator cost recovery. An operator or mine owner who prevails in an appeal of a Department order to replace a water supply may pursue recovery of costs in accordance with 27 Pa.C.S. § 7708 (relating to costs for mining proceedings).
(l) Other remedies. Nothing in this section prevents a water supply owner or water supply user who claims pollution or diminution of a water supply from pursuing any other remedy that may be provided for in law or in equity. This section does not prevent an operator or mine owner from pursuing any remedy in law or in equity should the operator incur costs for restoring or replacing a water supply that experienced pollution or diminution caused by third parties.
(m) Issuance of new permits. A Department order issued under this section which is appealed will not be used to block issuance of new permits.
(n) Department authority. Nothing in this section limits the Department’s authority under section 4.2(f)(l) of SMCRA.
(o) Exception. A surface mining operation conducted under a surface mining permit issued by the Department before February 16, 1993, is not subject to subsections (a) and (c)—(m) but is subject to subsections (b) and (n).
Authority The provisions of this § 88.107a added under section 5 of The Clean Streams Law (35 P.S. § 691.5); sections 4(a) and 4.2 of the Surface Mining Conservation and Reclamation Act (52 P.S. § § 1396.4(a) and 1396.4b); section 3.2 of the Coal Refuse Disposal Control Act (52 P.S. § 30.53b); section 7(b) of The Bituminous Mine Subsidence and Land Conservation Act (52 P.S. § 1406.7(b)); and section 1920-A of The Administrative Code of 1929 (71 P.S. § 510-20).
Source The provisions of this § 88.107a adopted June 25, 2021, effective June 26, 2021, 51 Pa.B. 3449.
Cross References This section cited in 25 Pa. Code § 88.1 (relating to definitions); and 25 Pa. Code § 88.381 (relating to general requirements).
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