PRINTER'S NO. 67
No. 78 Session of 1991
INTRODUCED BY GEORGE, HASAY, JAROLIN, MIHALICH, WOZNIAK, SURRA,
BOWLEY, S. H. SMITH, FREEMAN, ARGALL, SALOOM AND FEE,
JANUARY 15, 1991
REFERRED TO COMMITTEE ON CONSERVATION, JANUARY 15, 1991
AN ACT
1 Amending the act of May 31, 1945 (P.L.1198, No.418), entitled,
2 as amended, "An act providing for the conservation and
3 improvement of land affected in connection with surface
4 mining; regulating such mining; providing for the
5 establishment of an Emergency Bond Fund for anthracite deep
6 mine operators; and providing penalties," further providing
7 for proceedings involving contamination or diminution of
8 water supplies.
9 The General Assembly of the Commonwealth of Pennsylvania
10 hereby enacts as follows:
11 Section 1. Section 4.2(f) of the act of May 31, 1945
12 (P.L.1198, No.418), known as the Surface Mining Conservation and
13 Reclamation Act, amended October 10, 1980 (P.L.835, No.155), is
14 amended to read:
15 Section 4.2. General Rule Making; Health and Safety.--* * *
16 (f) (1) Any surface mining operator who affects a public or
17 private water supply by contamination or diminution shall
18 restore or replace the affected supply with an alternate source
19 of water adequate in quantity and quality for the purposes
20 served by the supply. If any operator shall fail to comply with
1 this provision, the secretary may issue such orders to the
2 operator as are necessary to assure compliance.
3 (2) It shall be presumed, as a matter of law, that a surface
4 mining operator or owner is responsible, without proof of fault,
5 negligence or causation, for all pollution, except
6 bacteriological contamination, or diminution of public or
7 private water supplies, within one thousand linear feet of the
8 boundaries of the land affected or acreage assigned to the
9 surface mining operation under section 3.1 by a permit issued by
10 the department. There shall be only five defenses to the
11 presumption of liability provided in this paragraph. A surface
12 mining operator or owner must affirmatively prove by a
13 preponderance of evidence that one of the following conditions
14 exists:
15 (i) The landowner or water supply company refused to allow
16 the surface mining operator or owner access to conduct a survey
17 prior to commencing surface mining activities.
18 (ii) The water supply is not within one thousand linear feet
19 of the boundaries of the land affected or the acreage assigned
20 to the surface mining operation under section 3.1 by a permit
21 issued by the department.
22 (iii) The pollution or diminution existed prior to the
23 surface mining activities as determined by a survey conducted
24 prior to commencing surface mining activities.
25 (iv) The pollution or diminution occurred as a result of
26 some cause other than the surface mining activities.
27 (v) The landowner, water supply user or water supply company
28 refuses to allow the surface mining operator or owner access to
29 determine the cause of pollution or diminution or to replace or
30 restore the water supply.
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1 (3) If the secretary finds that immediate replacement of an
2 affected water supply used for potable or domestic needs is
3 required to protect health and safety, and that the operator or
4 owner has appealed or failed to comply with an order issued
5 pursuant to this subsection, the secretary may restore or
6 replace the affected water supply with an alternate source of
7 water utilizing moneys from the Surface Mining Conservation and
8 Reclamation Fund. The secretary shall recover the costs of
9 restoration or replacement, including costs incurred for design
10 and construction of facilities, from the responsible operators
11 or owners. Costs recovered shall be deposited in the Surface
12 Mining Conservation and Reclamation Fund.
13 (4) An operator or owner aggrieved by the secretary's order
14 issued pursuant to this subsection shall have the right within
15 thirty (30) days of receipt of the order to appeal to the
16 Environmental Hearing Board. The secretary's order, when
17 appealed by an operator or owner, shall not be used to block the
18 issuance of new permits or the release of bonds when a stage of
19 reclamation work is completed. Hearings under this subsection
20 shall be in accordance with the act of July 13, 1988 (P.L.530,
21 No.94), known as the "Environmental Hearing Board Act," and 2
22 Pa.C.S. Ch. 5 Subch. A (relating to practice and procedure of
23 Commonwealth agencies) and Ch. 7, Subch. A (relating to judicial
24 review of Commonwealth agency action).
25 (5) A surface mining operator or owner who provides a
26 successful defense to the presumption of liability shall be
27 entitled to recover the costs incurred, including, but not
28 limited to, the costs of temporary water supply, design,
29 construction, restoration or replacement costs, attorney fees
30 and expert witness fees from the department.
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1 (6) Nothing in this subsection shall prevent any landowner
2 or water supply company who claims pollution or diminution of a
3 water supply from seeking any other remedy that may be provided
4 for at law or in equity.
5 (7) A surface mining operation conducted under a surface
6 mining permit issued by the department before the effective date
7 of this act shall not be subject to the provisions of clauses
8 (2), (3), (4), (5) and (6) of this subsection, but shall be
9 subject to clause (1) of this subsection.
10 * * *
11 Section 2. This act shall take effect in 60 days.
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