Subchapter F. SUBSIDENCE CONTROL AND WATER SUPPLY REPLACEMENT
Sec.
89.141. Subsidence control: application requirements.
89.142. [Reserved].
89.142a. Subsidence control: performance standards.
89.143. [Reserved].
89.143a. Subsidence control: procedure for resolution of subsidence damage claims.
89.144. [Reserved].
89.144a. Subsidence control: relief from responsibility.
89.145. [Reserved].
89.145a. Water supply replacement: performance standards.
89.146. [Reserved].
89.146a. Water supply requirement: procedure for resolution of water supply damage claims.
89.147—89.151. [Reserved].
89.152. Water supply replacement: special provisions.
89.153. Water supply replacement: rebuttable presumption.
89.154. Maps.
89.155. Public notice.§ 89.141. Subsidence control: application requirements.
(a) Geology. The application shall include a description of the geology overlying the proposed permit area, from the surface down to the first stratum below the coal seam to be mined. The description shall include geologic conditions which are relevant to the likelihood or extent of subsidence or subsidence related damage. For the same strata, a detailed description and cross-section shall be provided from available test borings and core samples. A copy of the information developed for § 89.33 (relating to geology) may be used as appropriate to meet the requirements of this section.
(b) Surface water. The application shall include a description of the surface waters overlying the permit area and adjacent area, including:
(1) The size and depth of lakes, ponds and impoundments.
(2) The average annual flow of perennial streams. For the purposes of this subchapter, perennial stream is a stream or part of a stream that flows continuously throughout the calendar year as a result of groundwater discharge or surface runoff. The term does not include intermittent or ephemeral streams.
(3) The height, width and composition of embankments.
(c) Prior mining. The application shall provide the following information relating to prior mining within, above or below the permit area:
(1) The type of mining, surface or underground.
(2) Mine name, permit numbers or other identification.
(3) The coal seams or other mineral strata mined.
(4) The extent of the coal or other minerals removed.
(5) The location and elevation of impounded water in the mine workings either overlying, below or within the permit area. If this information is not available the applicant shall outline the efforts undertaken to obtain it.
(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.
Authority The provisions of this § 89.141 amended under section 7 of The Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) (52 P. S. § 1406.7); section 5 of The Clean Streams Law (35 P. S. § 691.5); section 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. § 1396.4b); section 3.2 of the Coal Refuse Disposal Control Act (52 P. S. § 30.53b); and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).
Editor’s Note: Certain parts of the rulemaking at 35 Pa.B. 5775 are authorized under a Federal action that superseded sections 5.1(b), 5.2(g)—(h), 5.4(a)(3) and (c) and 5.5(b) of the BMSLCA (52 P. S. § § 1406.5a(b), 1406.5b(g)—(h), 1406.5d(a)(3) and (c) and 1406.5e(b)) to the extent these statutory provisions conflicted with the Federal Surface Mining Control and Reclamation Act of 1977 (Federal SMCRA) (30 U.S.C.A. § § 1201—1328). The Federal action effecting these changes was published at 69 FR 71551 (December 9, 2004).
Source The provisions of this § 89.141 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended March 29, 1985, 15 Pa.B. 1169, effective December 28, 1985, 15 Pa.B. 4581; corrected January 24, 1986, effective December 28, 1985, 16 Pa.B. 249; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821; amended June 12, 1998, effective June 13, 1998, 28 Pa.B. 2761; amended October 21, 2005, effective October 22, 2005, 35 Pa.B. 5775. Immediately preceding text appears at serial pages (245154) and (313577) to (313578).
Cross References This section cited in 25 Pa. Code § 89.142a (relating to subsidence control: performance standards); and 25 Pa. Code § 89.154 (relating to maps).
§ 89.142. [Reserved].
Source The provisions of this § 89.142 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; amended March 29, 1985, 15 Pa.B. 1169, effective December 28, 1985, 15 Pa.B. 4581; corrected January 24, 1986, effective December 28, 1985, 16 Pa.B. 249; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821; amended May 9, 1997, effective May 10, 1997, 27 Pa.B. 2371; amended June 12, 1998, effective June 13, 1998, 28 Pa.B. 2761. Immediately preceding text appears at serial pages (239680) to (239682).
Notes of Decisions Development of Land
Although there is no specific requirement that a coal company, desirous of mining coal under underdeveloped land owned by another, indicate its manner of support of the undeveloped land on the registered map under the Pennsylvania Bituminous Mine Subsidence and Land Conservation Act, such a requirement is within the scope of the Act and may be established through the Department of Environmental Resources prior to a request that the coal company include in its map certain other information. Burns v. Consol Pa. Coal Company, 636 A.2d 642 (Pa. Super. 1994).
Cross References This section cited in 25 Pa. Code § 89.144a (relating to subsidence control: relief from responsibility).
§ 89.142a. Subsidence control: performance standards.
(a) General requirements. Underground mining operations shall be planned and conducted in accordance with the following:
(1) The subsidence control plan required by § 89.141(d) (relating to subsidence control: application requirements) and the postmining land use requirements in § 89.88 (relating to postmining land use).
(2) The performance standards in subsections (b)—(j).
(3) Underground mining will not be authorized beneath structures where the depth of overburden is less than 100 feet (30.48 meters), unless the subsidence control plan demonstrates to the Department’s satisfaction that the mine workings will be stable and that overlying structures will not suffer irreparable damage.
(4) The mine operator shall adopt measures to maximize mine stability. This subsection does not prohibit planned subsidence in a predictable and controlled manner or the standard method of room and pillar mining.
(b) Structure surveys.
(1) The operator shall conduct premining surveys of all structures listed under subsection (f)(1). The operator is relieved of the duty to conduct a premining survey if the operator has complied with the notice procedure in paragraph (2) and the landowner denies the operator access to conduct a premining survey or the structure was constructed less than 15 days before mining will enter the area described in subparagraph (ii).
(i) The premining survey shall document the existing condition of each structure and for structures that are recognized as historically or architecturally significant, the presence of any architectural characteristics that will require special craftsmanship to replace.
(ii) The premining survey shall be completed prior to the time that a structure falls within a 30° angle of draw of underground mining, or a larger area as required by the Department.
(iii) The results of a premining survey shall be submitted to the landowner within 30 days of completion and to the Department upon Department request.
(iv) The operator may not provide the results of a premining survey to persons other than the structure owner and the Department without the consent of the structure owner.
(v) The operator shall store survey results in a secure location and shall limit access to the results to authorized personnel.
(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.
(2) The measures adopted by the operator to comply with paragraph (1) shall consist of one of the following:
(i) Providing a support area beneath the structure or surface feature to be protected where coal extraction is limited to 50%, and the following:
(A) The support area shall consist of pillars of coal of a size and in a pattern which maximizes bearing strength, and which is approved by the Department.
(B) For purposes of this section, the support area shall be rectangular in shape and determined by projecting a 15° angle of draw from the surface to the coal seam beginning 15 feet (4.57 meters) from the sides of the structure. For a structure on a slope of 5% or greater, the support area on the downslope side of the structure shall be extended an additional distance determined by multiplying the thickness of the overburden by the percentage expressed as a decimal of the surface slope. A pillar lying partially within the support area shall be considered part of the support area and shall be consistent with the other support pillars in size and pattern.
(C) The area lying between two support areas shall be treated as a support area, when the distance between the two support areas is less than the depth of the overburden.
(D) If the Department determines there is a potential for material damage or reducing the reasonably foreseeable use of a structure or feature listed in paragraph (1), the Department may limit the percentage of coal extracted under or adjacent to the structure or feature as necessary to minimize the potential for material damage or reduction in reasonably foreseeable use.
(ii) Backfilling or backstowing of voids.
(iii) Leaving areas in which no coal extraction will occur.
(iv) Taking measures on the surface to prevent material damage or reduction in the reasonably foreseeable use of the structure or feature.
(v) Demonstrating that the structure or feature will not be materially damaged through an engineering report or a report of the effects of mining under similar conditions.
(vi) Initiating a monitoring program within a specified area to detect surface movement resulting from the underground mining. The program shall entail placing monitors sufficiently in advance of the underground mining so that if exces sive subsidence occurs the underground mining can be stopped before the protected structures or features are damaged. In calculating the area to be monitored, a 30° angle of draw shall be used.
(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 structures 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.
(2) The measures an operator may take to minimize damage, destruction or disruption in services protected by this subsection may include, but are not limited to, one or more of the following:
(i) A program for detecting subsidence damage and minimizing disruption in services.
(ii) A notification to the owner of the facility which specifies when underground mining beneath or adjacent to the utility will occur.
(iii) Providing support in accordance with the utility owner’s support rights.
(iv) Providing temporary or alternate service to customers.
(v) Demonstrating to the Department that subsidence will not materially damage the utility.
(3) A mine operator shall take measures to minimize damage to customer-owned gas and water service connections, unless the customer does not consent to the measures.
(4) The Department will suspend or restrict underground mining if it determines that mining beneath or adjacent to a utility will present an imminent hazard to human safety.
(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.
(2) If the Department determines and so notifies the operator that a mining technique or extraction ratio will result in subsidence which creates an imminent hazard to human safety, the operator may not use the technique or extraction ratio unless the operator, prior to mining, takes measures approved by the Department to eliminate the imminent hazard to human safety.
(j) Prohibition. Underground mining is prohibited under an area which is not included within a subsidence control plan that has been submitted under § 89.141(d) and approved by the Department.
(k) Report of claim. Within 10 days of being advised of a claim of subsidence damage to a structure or surface feature, the operator shall provide the Department with a report of the claim which shall include the following information:
(1) The date of the claim.
(2) The name, address and telephone number of the owner of the structure, surface feature or surface land claimed to be damaged.
(3) The number assigned to the structure or feature under § 89.154(a) (relating to maps).
(l) Property rights. This section does not authorize the Department to adjudicate property rights disputes between mine operators and other parties.
Authority The provisions of this § 89.142a amended under section 7 of The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § 1406.7); section 5 of The Clean Streams Law (35 P. S. § 691.5); section 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. § 1396.4b); section 3.2 of the Coal Refuse Disposal Control Act (52 P. S. § 30.53b); and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).
Editor’s Note: Certain parts of the rulemaking at 35 Pa.B. 5775 are authorized under a Federal action that superseded sections 5.1(b), 5.2(g)—(h), 5.4(a)(3) and (c) and 5.5(b) of the BMSLCA (52 P. S. § § 1406.5a(b), 1406.5b(g)—(h), 1406.5d(a)(3) and (c) and 1406.5e(b)) to the extent these statutory provisions conflicted with the Federal Surface Mining Control and Reclamation Act of 1977 (Federal SMCRA) (30 U.S.C.A. § § 1201—1328). The Federal action effecting these changes was published at 69 FR 71551 (December 9, 2004).
Source The provisions of this § 89.142a adopted June 12, 1998, effective June 13, 1998, 28 Pa.B. 2761; amended October 21, 2005, effective October 22, 2005, 35 Pa.B. 5775. Immediately preceding text appears at serial pages (313578) to (313584).
Notes of Decisions All Perennial Streams Protected
EHB correctly interpreted the plain language of mine subsidence control regulation that the Department has authority to regulate mining activity in order to protect the values and reasonably foreseeable uses of perennial streams, regardless of their size, including small perennial stream that had no name. UMCO v. Department of Environmental Protection, 938 A.2d 530, 537 (Pa. Cmwlth. 2007)
Construction
Preambles may be used to resolve an ambiguity in a regulation; however, preambles may not be used to create ambiguity where none exists, and in any case where a preamble is used as a tool to resolve an ambiguous law, the preamble is not controlling. The language in the preamble was not controlling because the regulatory language was clear. UMCO v. Department of Environmental Protection, 938 A.2d 530, 537 (Pa. Cmwlth. 2007)
Cross References This section cited in 25 Pa. Code § 89.5 (relating to definitions); 25 Pa. Code § 89.141 (relating to subsidence control: application requirements); 25 Pa. Code § 89.143a (relating to subsidence control: procedure for resolution of subsidence damage claims); 25 Pa. Code § 89.144a (relating to subsidence: relief from responsibility); and 25 Pa. Code § 89.154 (relating to maps).
§ 89.143. [Reserved].
Source The provisions of this § 89.143 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; paragraphs (2)(iii)(A)—(D) and (4) are suspended July 1, 1983, effective July 2, 1983, 13 Pa.B. 2057; amended March 29, 1985, 15 Pa.B. 1169, effective December 28, 1985, 15 Pa.B. 4581; corrected January 24, 1986, effective December 28, 1985, 16 Pa.B. 249; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821; amended May 9, 1997, effective May 10, 1997, 27 Pa.B. 2371; reserved June 12, 1998, effective June 13, 1998, 28 Pa.B. 2761. Immediately preceding text appears at serial pages (239683) to (239684) and (234539) to (234540).
Notes of Decisions Subsurface Rights
DER has no duty under Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § § 1406.1—1406.21) to consider effects of subsidence on underlying coal seam as the act does not apply to subsurface rights. George v. Department of Environmental Resources, 517 A.2d 578 (Pa. Cmwlth. 1986).
DER must consider effects of subsidence on significant sources of public water under the Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § § 1406.1—1406.21) and a landowner’s failure to allege his stream as a significant source of public water is a de minimis error. George v. Department of Environmental Resources, 517 A.2d 578 (Pa. Cmwlth. 1986).
§ 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.
Authority The provisions of this § 89.143a amended under section 7 of The Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) (52 P. S. § 1406.7); section 5 of The Clean Streams Law (35 P. S. § 691.5); section 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. § 1396.4b); section 3.2 of the Coal Refuse Disposal Control Act (52 P. S. § 30.53b); and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).
Editor’s Note: Certain parts of the rulemaking at 35 Pa.B. 5775 are authorized under a Federal action that superseded sections 5.1(b), 5.2(g)—(h), 5.4(a)(3) and (c) and 5.5(b) of the BMSLCA (52 P. S. § § 1406.5a(b), 1406.5b(g)—(h), 1406.5d(a)(3) and (c) and 1406.5e(b)) to the extent these statutory provisions conflicted with the Federal Surface Mining Control and Reclamation Act of 1977 (Federal SMCRA) (30 U.S.C.A. § § 1201—1328). The Federal action effecting these changes was published at 69 FR 71551 (December 9, 2004).
Source The provisions of this § 89.143a adopted June 12, 1998, effective June 13, 1998, 28 Pa.B. 2761; amended October 21, 2005, effective October 22, 2005, 35 Pa.B. 5775. Immediately preceding text appears at serial page (313584) to (313585).
§ 89.144. [Reserved].
Source The provisions of this § 89.144 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; subsection (b)(3) is suspended July 1, 1983, effective July 2, 1983, 13 Pa.B. 2057; amended March 29, 1985, 15 Pa.B. 1169, effective December 28, 1985, 15 Pa.B. 4581; corrected January 24, 1986, effective December 28, 1985, 16 Pa.B. 249; amended June 15, 1990, 20 Pa.B. 3383, effective July 27, 1991, 21 Pa.B. 3316; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821; amended May 9, 1997, effective May 10, 1997, 27 Pa.B. 2371; reserved June 12, 1998, effective June 13, 1998, 28 Pa.B. 2761. Immediately preceding text appears at serial pages (234540) to (234541).
§ 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 and implement necessary and prudent damage minimization measures.
Authority The provisions of this § 89.144a amended under section 7 of The Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) (52 P. S. § 1406.7); section 5 of The Clean Streams Law (35 P. S. § 691.5); section 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. § 1396.4b); section 3.2 of the Coal Refuse Disposal Control Act (52 P. S. § 30.53b); and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).
Editor’s Note: Certain parts of the rulemaking at 35 Pa.B. 5775 are authorized under a Federal action that superseded sections 5.1(b), 5.2(g)—(h), 5.4(a)(3) and (c) and 5.5(b) of the BMSLCA (52 P. S. § § 1406.5a(b), 1406.5b(g)—(h), 1406.5d(a)(3) and (c) and 1406.5e(b)) to the extent these statutory provisions conflicted with the Federal Surface Mining Control and Reclamation Act of 1977 (Federal SMCRA) (30 U.S.C.A. § § 1201—1328). The Federal action effecting these changes was published at 69 FR 71551 (December 9, 2004).
Source The provisions of this § 89.144a adopted June 12, 1998, effective June 13, 1998, 28 Pa.B. 2761; amended October 21, 2005, effective October 22, 2005, 35 Pa.B. 5775. Immediately preceding preceding text appears at serial page (313585) to (313586).
Cross References This section cited in 25 Pa. Code § 89.142a (relating to subsidence control: performance standards).
§ 89.145. [Reserved].
Source The provisions of this § 89.145 adopted July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; subsections (a)(4), (b) and (d) are suspended July 1, 1983, effective July 2, 1983, 13 Pa.B. 2057; suspension of subsections (a)(4) and (b) modified September 28, 1984, effective September 29, 1984, 14 Pa.B. 3518; amended March 29, 1985, 15 Pa.B. 1169, effective December 28, 1985, 15 Pa.B. 4581; corrected January 24, 1986, effective December 28, 1985, 16 Pa.B. 249; amended December 15, 1995, effective December 16, 1995, 25 Pa.B. 5821; amended May 9, 1997, effective May 10, 1997, 27 Pa.B. 2371; reserved June 12, 1998, effective June 13, 1998, 28 Pa.B. 2761. Immediately preceding text appears at serial pages (234542) to (234543).
§ 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).
(c) Within 24 hours of an operator’s receipt of a claim of water supply contamination, diminution or interruption, the operator shall notify the Department of the claim.
(d) Investigation and reporting of water supply damage complaints. Upon receipt of notification that a water supply has been contaminated, diminished or interrupted and that the operator’s underground mining activities may have caused the contamination, diminution or interruption, the operator shall diligently investigate the complaint and notify the Department in a timely manner of the results of the operator’s investigation. This subsection does not apply to water supplies affected by underground mining activities which are governed by Chapter 87.
(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. § § 721.1—721.17), 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.
Authority The provisions of this § 89.145a amended under section 7 of The Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) (52 P. S. § 1406.7); section 5 of The Clean Streams Law (35 P. S. § 691.5); section 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. § 1396.4b); section 3.2 of the Coal Refuse Disposal Control Act (52 P. S. § 30.53b); and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).
Editor’s Note: Certain parts of the rulemaking at 35 Pa.B. 5775 are authorized under a Federal action that superseded sections 5.1(b), 5.2(g)—(h), 5.4(a)(3) and (c) and 5.5(b) of the BMSLCA (52 P. S. § § 1406.5A(b), 1406.5b(g)—(h), 1406.5d(a)(3) and (c) and 1406.5e(b)) to the extent these statutory provisions conflicted with the Federal Surface Mining Control and Reclamation Act of 1977 (Federal SMCRA) (30 U.S.C.A. § § 1201—1328). The Federal action effecting these changes was published at 69 FR 71551 (December 9, 2004).
Source The provisions of this § 89.145a adopted June 12, 1998, effective June 13, 1998, 28 Pa.B. 2761; amended October 21, 2005, effective October 22, 2005, 35 Pa.B. 5775. Immediately preceding text appears at serial pages (313586) to (313589).
Cross References This section cited in 25 Pa. Code § 89.5 (relating to definitions); 25 Pa. Code § 89.152 (relating to water supply replacement: special provisions); and 25 Pa. Code § 89.153 (relating to water supply replacement: rebuttable presumption).
§ 89.146. [Reserved].
Source The provisions of this § 89.146 adopted July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; subsection (e) is suspended July 1, 1983, effective July 2, 1983, 13 Pa.B. 2057; amended March 29, 1985, 15 Pa.B. 1169, effective December 28, 1985, 15 Pa.B. 4581; corrected January 24, 1986, effective December 28, 1985, 16 Pa.B. 249; reserved May 9, 1997, effective May 10, 1997, 27 Pa.B. 2371. Immediately preceding text appears at serial page (207652).
§ 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.
Authority The provisions of this § 89.146a amended under section 7 of The Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) (52 P. S. § 1406.7); section 5 of The Clean Streams Law (35 P. S. § 691.5); section 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. § 1396.4b); section 3.2 of the Coal Refuse Disposal Control Act (52 P. S. § 30.53b); and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).
Editor’s Note: Certain parts of the rulemaking at 35 Pa.B. 5775 are authorized under a Federal action that superseded sections 5.1(b), 5.2(g)—(h), 5.4(a)(3) and (c) and 5.5(b) of the BMSLCA (52 P. S. § § 1406.5a(b), 1406.5b(g)—(h), 1406.5d(a)(3) and (c) and 1406.5e(b)) to the extent these statutory provisions conflicted with the Federal Surface Mining Control and Reclamation Act of 1977 (Federal SMCRA) (30 U.S.C.A. § § 1201—1328). The Federal action effecting these changes was published at 69 FR 71551 (December 9, 2004).
Source The provisions of this § 89.146a adopted June 12, 1998, effective June 13, 1998, 28 Pa.B. 2761; amended October 21, 2005, effective October 22, 2005, 35 Pa.B. 5775. Immediately preceding text appears at serial pages (313589) to (313590).
§ 89.147. [Reserved].
Source The provisions of this § 89.147 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; subsection (a) is suspended July 1, 1983, effective July 2, 1983, 13 Pa.B. 2057; reserved March 29, 1985, 15 Pa.B. 1169, effective December 28, 1985, 15 Pa.B. 4581; corrected January 24, 1986, effective December 28, 1985, 16 Pa.B. 249. Immediately preceding text appears at serial pages (92742) to (92743).
§ 89.148. [Reserved].
Source The provisions of this § 89.148 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; reserved March 29, 1985, 15 Pa.B. 1169, effective December 28, 1985, 15 Pa.B. 4581; corrected January 24, 1986, effective December 28, 1985, 16 Pa.B. 249. Immediately preceding text appears at serial pages (92743) to (92744).
§ 89.149. [Reserved].
Source The provisions of this § 89.149 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; amended July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382; reserved March 29, 1985, 15 Pa.B. 1169, effective December 28, 1985, 15 Pa.B. 4581; corrected January 24, 1986, effective December 28, 1985, 16 Pa.B. 249. Immediately preceding text appears at serial page (92744).
§ 89.150. [Reserved].
Source The provisions of this § 89.150 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; reserved July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.
§ 89.151. [Reserved].
Source The provisions of this § 89.151 adopted December 19, 1980, 10 Pa.B. 4789, effective July 31, 1982, 12 Pa.B. 2382; reserved July 30, 1982, 12 Pa.B. 2473, effective July 31, 1982, 12 Pa.B. 2382.
§ 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).
Authority The provisions of this § 89.152 amended under section 7 of The Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) (52 P. S. § 1406.7); section 5 of The Clean Streams Law (35 P. S. § 691.5); section 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. § 1396.4b); section 3.2 of the Coal Refuse Disposal Control Act (52 P. S. § 30.53b); and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).
Editor’s Note: Certain parts of the rulemaking at 35 Pa.B. 5775 are authorized under a Federal action that superseded sections 5.1(b), 5.2(g)—(h), 5.4(a)(3) and (c) and 5.5(b) of the BMSLCA (52 P. S. § § 1406.5a(b), 1406.5b(g)—(h), 1406.5d(a)(3) and (c) and 1406.5e(b)) to the extent these statutory provisions conflicted with the Federal Surface Mining Control and Reclamation Act of 1977 (Federal SMCRA) (30 U.S.C.A. § § 1201—1328). The Federal action effecting these changes was published at 69 FR 71551 (December 9, 2004).
Source The provisions of this § 89.152 adopted June 12, 1998, effective June 13, 1998, 28 Pa.B. 2761; amended October 21, 2005, effective October 22, 2005, 35 Pa.B. 5775. Immediately preceding text appears at serial pages (313591) to (313592).
Cross References This section cited in 25 Pa. Code § 89.145a (relating to water supply replacement: performance standards).
§ 89.153. Water supply replacement: rebuttable presumption.
(a) In a determination or proceeding under section 5.2 of The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § 1406.5b), it is presumed that the operator is responsible for the contamination, diminution or interruption of a water supply that is within the rebuttable presumption area.
(b) The operator may successfully rebut the presumption by affirmatively proving that the landowner denied the operator access to the property on which the water supply is located to conduct a premining survey or a postmining survey of the quality and quantity of the water supply and that the operator complied with the notification procedure in § 89.145a(a)(3) (relating to water supply replacement: performance standards).
(c) Affirmatively proving that an operator was denied access to conduct a premining or postmining survey of a water supply does not relieve the operator of liability for the contamination, diminution or interruption when the landowner, affected water use or the Department proves the operator’s underground mining activities caused the contamination, diminution or interruption.
Source The provisions of this § 89.153 adopted June 12, 1998, effective June 13, 1998, 28 Pa.B. 2761.
§ 89.154. Maps.
(a) General mine map. The application shall include maps prepared under the supervision of and certified by a qualified registered professional engineer or qualified registered professional land surveyor drawn to a scale of 1 inch = 500 feet in a manner satisfactory to the Department, updated as requested by the Department, showing the items identified in this subsection. The map shall cover all areas where structures may be damaged and surface lands may suffer material damage as a result of mine subsidence. At a minimum, the map shall cover the entire area above the mine, and all areas within a 30° angle of draw of the limits of the mine. The requirements of paragraphs (2)—(7) may be satisfied by referencing the maps required by Subchapter B (relating to operations). The map, at a minimum, shall show the following:
(1) The boundaries of areas proposed to be affected over the estimated total life of the underground mining activity, with a description of the size, sequence and the schedule for mining subareas of the mine.
(2) The location of test borings and core samplings, and surface and coal elevations at these locations.
(3) Coal crop lines and the contours of the coal seam to be mined within the permit and adjacent areas.
(4) The location and extent of known workings of active, inactive or abandoned, underground or surface mines, including identification of the coal seams mined and location of mine openings to the surface within, above and below the proposed permit and adjacent areas.
(5) The portrayal of major aquifers on cross-sections.
(6) The area covered by the subsidence control plan submitted under § 89.141(d) (relating to subsidence control: application requirements) with the following information identified:
(i) The boundaries of lands and names of current surface and subsurface owners of record.
(ii) Dwellings, public buildings and facilities, churches, schools, hospitals and impoundments with a storagecapacity of 20 acre-feet (2.47 hectare-meters), identified by numerical reference.
(iii) Structures or classes of structures listed in § 89.142a(f)(1)(i)—(v) (relating to subsidence control: performance standards), identified by numerical reference.
(iv) Urbanized areas, cities, towns, communities and industrial or commercial buildings.
(v) Public parks and historic structures.
(vi) Other structures which are entitled to support, identified by numerical reference.
(vii) Water supplies.
(viii) Major electric transmission lines, including identification by name or numerical reference.
(ix) Public roads and railroads.
(x) Oil, gas and coal slurry pipelines larger than 4 inches (10.16 centimeters) in diameter, including identification by name or numerical reference.
(xi) Water and sewer mains and transmission lines, including identification by name or numerical reference.
(xii) Surface water bodies, including perennial streams, lakes, ponds, dams and impoundments with a volume of 20 acre-feet (2.47 hectare meters) or more, indicating by numerical reference those perennial streams and other bodies of water which are a significant source for a public water supply system.
(xiii) Coal refuse disposal areas, solid and hazardous waste disposal areas, and other air and water pollution control facilities, all identified by numerical reference.
(xiv) Gas, oil and water wells, identified by numerical reference.
(xv) Surface sites and facilities associated with the underground permit application.
(xvi) Aquifers which serve as a significant source for a public water supply system, identified by numerical reference.
(xvii) Political subdivisions.
(xviii) Landslide prone areas.
(xix) Proposed underground workings including a description of the location and extent of the areas in which planned subsidence mining methods will be used and the identification of all areas where the measures described in § 89.141(d)(3), (5) and (7) will be taken to prevent or minimize subsidence and subsidence-related damage; and when applicable, to repair subsidence-related damage.
(7) Areas over the proposed mine where the overburden is 100 feet (30.48 meters) or less.
(b) Six-month maps. The operator shall submit mine maps to the Department every 6 months. The maps shall:
(1) Be drawn to a scale of 1 inch = 100 feet or 1 inch = 200 feet.
(2) Be prepared under the supervision of and certified by a qualified registered professional engineer or qualified registered professional land surveyor.
(3) Show the area in which mining is projected to occur in the next 6 months.
(4) Show the area where underground mining occurred over the last 6 months, including pillar locations, and the areas abandoned or completed within the last 6 months.
(5) Provide the following information:
(i) The location and identifying number for structures and surface features required to be identified by number in subsection (a)(6)(i)—(xviii).
(ii) The location and identifying number of structures and surface features required to be identified by number in subsection (a)(6)(i)—(xviii), which have appeared since the permit application.
(iii) The location of surface boundaries and identification of surface owners of record and the owners of record of the coal seam being mined.
(iv) The boundaries of the projected mining area and within that area designated coal areas to be mined and coal areas to be left unmined, including:
(A) A description of the areas to be supported by the pillar plan required by § 89.142a(c)(2).
(B) Coal left in place in compliance with other statutes including those listed in § 89.141(d)(12).
(C) Identification of other areas of planned and controlled subsidence.
(v) Existing mine working adjacent to the area to be mined in the next 6 months, including a designation of any survey stations, elevations of the bottom of the coal seam and areas of geologic faults.
(vi) Other information requested by the Department.
(c) Map to be filed with recorder of deeds. After the Department has determined that the 6-month map is in accordance with the subsidence control plan, the operator shall file a copy of the map with the recorder of deeds for each county in which underground mining is projected, and submit to the Department proof of this filing.
(d) Restriction of activity. No underground mining may occur until it is shown as projected underground mining on the maps required by subsection (b) and the maps have been on file with the recorder of deeds’ office for 10 days.
Source The provisions of this § 89.154 adopted June 12, 1998, effective June 13, 1998, 28 Pa.B. 2761.
Cross References This section cited in 25 Pa. Code § 89.155 (relating to public notice).
§ 89.155. Public notice.
(a) The operator shall send a notice by certified mail, return receipt requested, to the owner of record of each property and each utility, and each political subdivision overlying its underground mining operations. A notice shall be sent to the resident and owner of each structure overlying the mining operation. The notice shall be sent at least 6 months, but not more than 5 years, prior to mining beneath that property or structure or within that political subdivision. The operator shall provide the Department with a copy of each notice and return receipt, or, if the certified mail is not accepted, a copy of the returned envelope documenting that the notice was not accepted or not deliverable.
(b) The notice shall identify:
(1) The area in which underground mining will take place.
(2) The approximate time frame, within the permit term, when the underground mining that may cause subsidence and affect specific structures is expected to occur.
(3) The location of the offices where the applications and maps submitted under this chapter are available for inspection and a schedule of dates for the submission of the 6-month maps under § 89.154(b) (relating to maps).
(4) The location of the offices of both the operator and the Department where a surface owner can submitwritten complaints alleging subsidence damage or water supply contamination, diminution or interruption.
(c) The operator shall establish and implement a procedure to notify Federal, State or local government agencies responsible for administering public facilities, such as roads, when the underground mining beneath or adjacent to the public facility will occur. The notification shall be given 6 months prior to underground mining beneath the public facility or shall be timed to enable the agency to take appropriate measures to protect the facility and to prevent conditions which may endanger the health, safety or welfare of the public.
Source The provisions of this § 89.155 adopted June 12, 1998, effective June 13, 1998, 28 Pa.B. 2761.
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