AN ACT

 

1Amending Title 27 (Environmental Resources) of the Pennsylvania
2Consolidated Statutes, further providing for definitions, for
3eligibility and project inventory, for landowner liability
4limitation and exceptions, for project liability limitation
5and exceptions and for exceptions.

6The General Assembly of the Commonwealth of Pennsylvania
7hereby enacts as follows:

8Section 1. The definitions of "eligible land and water,"
9"water pollution abatement facilities" and "water pollution 
10abatement project" in section 8104 of Title 27 of the
11Pennsylvania Consolidated Statutes are amended and the section
12is amended by adding definitions to read:

13§ 8104. Definitions.

14The following words and phrases when used in this chapter
15shall have the meanings given to them in this section unless the
16context clearly indicates otherwise:

17* * *

18"Eligible land and water." Land and water adversely affected
19by mining or oil or gas extraction and left or abandoned in an

1unreclaimed or inadequately reclaimed condition or left
2discharging water pollution and for which no person has a
3continuing reclamation or water pollution abatement obligation.
4The term shall also include land and water adversely affected by
5mining or oil or gas extraction and left in an unreclaimed or
6inadequately reclaimed condition or left discharging water
7pollution for which the Department of Environmental Protection
8has forfeited and collected the operators bonds and there is no
9outstanding litigation concerning the bond forfeiture. Without 
10limiting the foregoing, for purposes of water pollution 
11abatement projects involving the use of mine drainage or mine 
12pool water for hydraulic fracturing or other development of a 
13gas well, industrial or other water supply or other beneficial 
14use of the water, the term also includes land and water 
15adversely affected by mining and left in an unreclaimed or 
16inadequately reclaimed condition, or left discharging water 
17pollution for which a treatment trust fund naming the department 
18as the beneficiary of the trust has been established.

19"Industrial or other water supply." The supply of water for 
20use by any lawful industrial, commercial or agricultural 
21facility or activity or by any public water supply as defined in 
22the act of May 1, 1984 (P.L.206, No.43), known as the 
23Pennsylvania Safe Drinking Water Act.

24* * *

25"Mine operator." The permittee of an active or closed mine
26that treats mine drainage under a permit issued by the
27department.

28* * *

29"Other beneficial use." Any use of water for a purpose that
30produces any economic, environmental, ecological or other

1benefits, including irrigation, silvaculture, cooling water,
2flow maintenance and augmentation, consumptive use makeup, and
3any other use of water deemed to be a beneficial use under
4common law.

5* * *

6"Treated mine drainage." Water from an active or closed mine 
7that is treated by the mine operator or water pollution 
8abatement project operator under a permit issued by the 
9department. Treated mine drainage that meets the effluent limits 
10for the National Pollutant Discharge Elimination System permit 
11for the source mine is not a solid waste as defined in section 
12103 of the act of July 7, 1980 (P.L.380, No.97), known as the 
13Solid Waste Management Act, and the regulations promulgated 
14thereunder.

15* * *

16"Water pollution abatement facilities." The methods for
17treatment or abatement of water pollution located on or 
18associated with eligible lands and water. These methods include,
19but are not limited to, a structure, system, practice, technique
20or method constructed, installed or followed to reduce, treat or
21abate such water pollution. The methods also include a 
22structure, system, practice, technique or method constructed, 
23installed or followed to enable the use of mine drainage or mine 
24pool water from eligible land and water for hydraulic fracturing 
25or other development of a gas well, industrial or other water 
26supply or other beneficial use of the water.

27"Water pollution abatement project." A [plan] project for
28treatment or abatement of water pollution located on eligible
29lands and water[. These plans include, but are not limited to,
30the practices to be followed and the installation, operation and

1maintenance of facilities to reduce, treat or abate such water
2pollution.], including, but not limited to, the practices to be 
3followed and the installation, operation and maintenance of 
4facilities and activities to:

5(1) reduce, treat or abate the water pollution;

6(2) withdraw, divert and use mine drainage or mine pool 
7water from eligible land and water for hydraulic fracturing 
8or other development of a gas well, industrial or other water 
9supply or other beneficial use of the water, with or without 
10treatment, that may or may not be located on eligible lands 
11and water; or

12(3) withdraw, divert and use treated mine drainage from 
13a permitted mining activity site for the hydraulic fracturing 
14or other development of a gas well, industrial or other water 
15supply or other beneficial use of the water.

16"Water pollution abatement project operator." The owner or
17operator of a water pollution abatement project approved by the
18department, and a person acting as a contractor to the owner or
19operator of a water pollution abatement project.

20Section 2. Section 8105(d) of Title 27 is amended to read:

21§ 8105. Eligibility and project inventory.

22* * *

23(d) Departmental review.--The department shall review each
24proposed reclamation project and approve the project if the
25department determines the proposed project:

26(1) will result in the regrading of the land to stable
27contours that blend in and complement the drainage pattern of
28the surrounding terrain with no highwalls, spoil piles or
29depressions to accumulate water;

30(2) will result in the appropriate revegetation of the

1site; and

2(3) is not likely to result in water pollution as
3defined in section 1 of the act of June 22, 1937 (P.L.1987, 
4No.394), known as The Clean Streams Law.

5The department shall review each proposed water pollution
6abatement project and approve the project if the department
7determines the proposed project is likely to improve the water
8quality [and is not likely to make the water pollution worse] or 
9reduce the volume or loading of mine water or an existing 
10discharge of pollution of mine water pollutants or will likely 
11have a beneficial impact on water resources in this 
12Commonwealth.

13* * *

14Section 3. Section 8106 heading and (a)(3) of Title 27 are
15amended and the section is amended by adding a subsection to
16read:

17§ 8106. [Landowner liability] Liability limitation and
18exceptions.

19(a) General rule.--Except as specifically provided in
20subsections (b) and (c), a landowner who provides access to the
21land, without charge or other consideration, which results in
22the implementation of a reclamation project or a water pollution
23abatement project:

24* * *

25(3) Shall be immune from liability for any [injury to]
26cost incurred by a third party, injury to a third party or
27damage suffered by a third party, including a downstream 
28riparian landowner, which arises out of or occurs as a result
29of a reclamation project or a water pollution abatement
30project.

1* * *

2(d) Mine water for beneficial uses.--Notwithstanding any
3other provision of this chapter, landowners, mine operators and 
4water pollution abatement project operators that are involved in
5treating mine drainage or mine pool water from a permitted
6mining activity site or water pollution abatement project shall
7not be deemed to assume legal responsibility for or to incur
8liability with respect to a cost, injury or damage that arises
9out of or occurs in connection with the use of mine drainage,
10mine pool water or treated mine water in connection with the
11hydraulic fracturing process or other development of a gas well, 
12industrial or other water supply or other beneficial use of the 
13water.

14Section 4. Section 8107 heading and (a)(1) of Title 27 are
15amended, the subsection is amended by adding paragraphs and the
16section is amended by adding a subsection to read:

17§ 8107. Project liability limitation [and], exceptions and 
18exemptions.

19(a) General rule.--Except as specifically provided in
20subsection (b), a water pollution abatement project operator or 
21other person who provides equipment, funding, materials or
22services at no cost [or at cost] to the Commonwealth for a
23reclamation project or a water pollution abatement project or 
24who implements any such project at no cost to the Commonwealth:

25(1) Shall be immune from liability for any injury to or
26damage suffered by a person, including a downstream riparian 
27landowner, which arises out of or occurs as a result of:

28(i) the water pollution abatement facilities
29constructed or installed during the water pollution
30abatement project; and

1 (ii) a reclamation project or a water pollution
2abatement project.

3* * *

4(5) May not be considered to be engaging in surface or 
5underground mining activities under the act of May 31, 1945 
6(P.L.1198, No.418), known as the Surface Mining Conservation 
7and Reclamation Act, or the act of April 27, 1966 (1st 
8Sp.Sess., P.L.31, No.1), known as The Bituminous Mine 
9Subsidence and Land Conservation Act, when the water 
10pollution abatement project involves the use of mine drainage 
11or mine pool water for hydraulic fracturing or other 
12development of a gas well, industrial or other water supply 
13or other beneficial use of the water.

14(6) May not be considered to be engaging in the 
15processing, treatment or disposal of a solid waste under the 
16act of July 7, 1980 (P.L.380, No.97), known as the Solid 
17Waste Management Act, or in the discharge of industrial waste 
18or pollutants under the act of June 22, 1937 (P.L.1987, 
19No.394), known as The Clean Streams Law, when using mine 
20drainage, mine pool water or treated mine drainage for 
21hydraulic fracturing or other development of a gas well, 
22industrial or other water supply or other beneficial use of 
23the water.

24(7) May not be considered an owner or operator of the
25project site for purposes of a State law that imposes
26reclamation or remediation obligations on the basis of past
27or present ownership or operation of the site, solely by
28reason of a water pollution abatement project involving the
29use of mine drainage or mine pool water for hydraulic
30fracturing or other development of a gas well, industrial or

1other water supply or other beneficial use of the water.

2* * *

3(c) Exemptions.--A person qualifying for immunity under this
4chapter, provided that the person's actions comply with the
5water pollution abatement project as approved by the department,
6is not deemed to be releasing hazardous waste or hazardous
7substances and is not subject to enforcement under the Solid
8Waste Management Act or the act of October 18, 1988 (P.L.756,
9No.108), known as the Hazardous Sites Cleanup Act.

10(d) Definitions.--As used in this section, the following
11words and phrases shall have the meanings given to them in this
12subsection unless the context clearly indicates otherwise:

13"Cost to the Commonwealth." The term does not include the
14awarding of grant funds by the department or a Commonwealth
15agency to a water pollution abatement project operator or other
16person who:

17(1) provides equipment, funding, materials or services
18to the Commonwealth for a reclamation project or a water
19pollution abatement project; or

20(2) implements any such project.

21"Hazardous substances." As defined in the Hazardous Sites
22Cleanup Act.

23"Hazardous waste." As defined in the Hazardous Sites Cleanup
24Act.

25Section 5. Section 8111(a) of Title 27 is amended to read:

26§ 8111. Exceptions.

27(a) General [rule] rules.--The following shall not be 
28eligible for nor shall that person receive the benefit of the 
29protections and immunities available under this chapter, 
30provided that, any person who uses and any person who allows the 

1use of or provides mine drainage, mine pool water or treated 
2mine water, as part of a water pollution abatement project, 
3including a mine operator or water pollution abatement project 
4operator that provides for payment or otherwise treated mine 
5drainage for hydraulic fracturing or other development of a gas 
6well, industrial or other water supply or other beneficial use 
7of the water shall receive the benefit of the protections and 
8immunities available under this chapter:

9[Any] (1) any person who under existing law shall be or
10may become responsible to reclaim the land or treat or abate
11the water pollution [or];

12(2) any person who [for] receives payment [or],
13consideration or [who receives] some other benefit through a
14contract [or] to reclaim the land or treat or abate the water 
15pollution except as provided by the opening paragraph of this 
16subsection; or

17(3) any person who through a consent order and agreement
18or otherwise agrees or is ordered to perform or complete
19reclamation or treat or abate water pollution as well as a
20surety which provided a bond for the site [shall not be
21eligible for nor shall that person receive the benefit of the
22protections and immunities available under this chapter].

23* * *

24Section 6. This act shall take effect in 60 days.