PRIOR PRINTER'S NOS. 2191, 3304 PRINTER'S NO. 3883
No. 1828 Session of 1991
INTRODUCED BY GEORGE, HASAY, HALUSKA, MIHALICH, SALOOM,
PETRARCA, JOHNSON, HAYDEN, COLAIZZO, FEE, KUKOVICH,
KRUSZEWSKI, SURRA, PRESTON, STABACK, BATTISTO, BILLOW, OLASZ,
McHALE, SERAFINI, TRELLO, DeWEESE, RICHARDSON AND PISTELLA,
JUNE 28, 1991
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
JUNE 24, 1992
AN ACT
1 Amending the act of April 27, 1966 (1st Sp.Sess., P.L.31, No.1),
2 entitled "An act to protect the public health, welfare and
3 safety by regulating the mining of bituminous coal; declaring
4 the existence of a public interest in the support of surface
5 structures; forbidding damage to specified classes of
6 existing structures from the mining of bituminous coal;
7 requiring permits, and in certain circumstances bonds, for
8 the mining of bituminous coal; providing for the filing of
9 maps or plans with recorders of deeds; providing for the
10 giving of notice of mining operations to political
11 subdivisions and surface landowners of record; requiring mine
12 inspectors to accompany municipal officers and their agents
13 on inspection trips; granting powers to public officers and
14 affected property owners to enforce the act; requiring
15 grantors to certify as to whether any structures on the lands
16 conveyed are entitled to support from the underlying coal and
17 grantees to sign an admission of a warning of the possible
18 lack of any such right of support; providing for acquisition
19 with compensation of coal support for existing structures not
20 protected by this act, and future structures; and imposing
21 liability for violation of the act," providing for the
22 restoration or replacement of water supplies materially
23 affected by mining; further providing for the replacement or
24 repair of certain structures affected by mine subsidence;
25 further providing for appeals and departmental action; and
26 making repeals.
27 The General Assembly of the Commonwealth of Pennsylvania
28 hereby enacts as follows:
1 Section 1. The title of the act of April 27, 1966 (1st
2 Sp.Sess., P.L.31, No.1), known as The Bituminous Mine Subsidence
3 and Land Conservation Act, is amended to read:
4 AN ACT
5 To protect the public health, welfare and safety by regulating
6 the mining of bituminous coal; declaring the existence of a
7 public interest in the support of surface structures;
8 [forbidding damage to specified classes of existing
9 structures from the mining of bituminous coal;] providing a
10 remedy for the restoration or replacement of water supplies
11 affected by underground mining; providing a remedy for the
12 restoration or replacement or compensation for surface
13 structures damaged by underground mining; providing standards
14 for the prevention of hazards to human safety and material
15 damage to certain structures; requiring permits, and in
16 certain circumstances bonds, for the mining of bituminous
17 coal; providing for the filing of maps or plans with
18 recorders of deeds; providing for the giving of notice of
19 mining operations to political subdivisions and surface
20 landowners of record; requiring mine inspectors to accompany
21 municipal officers and their agents on inspection trips;
22 granting powers to public officers and affected property
23 owners to enforce the act; requiring grantors to certify as
24 to whether any structures on the lands conveyed are entitled
25 to support from the underlying coal and grantees to sign an
26 admission of a warning of the possible lack of any such right
27 of support; [providing for acquisition with compensation of
28 coal support for existing structures not protected by this
29 act, and future structures;] requiring grantors to provide
30 notice of the existence of voluntary agreements for the
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1 restoration or replacement of water supplies or for the
2 repair or compensation for structural damage; imposing duties
3 on the Department of Environmental Resources for the
4 compilation and analysis of data; and imposing liability for
5 violation of the act.
6 Section 2. Sections 2 and 3 of the act, amended October 10,
7 1980 (P.L.874, No.156), are amended to read:
8 Section 2. Purpose.--This act shall be deemed to be an
9 exercise of the police powers of the Commonwealth for the
10 protection of the health, safety and general welfare of the
11 people of the Commonwealth, by providing for the conservation of
12 surface land areas which may be affected in the mining of
13 bituminous coal by methods other than "open pit" or "strip"
14 mining, to aid in the protection of the safety of the public, to
15 enhance the value of such lands for taxation, to aid in the
16 preservation of surface water drainage and public [water
17 supplies] and private water supplies, to provide for the
18 restoration or replacement of water supplies affected by
19 underground mining, to provide for the restoration or
20 replacement of, or compensation for, surface structures damaged
21 by underground mining and generally to improve the use and
22 enjoyment of such lands and to maintain primary jurisdiction
23 over surface coal mining in Pennsylvania.
24 Section 3. Legislative findings; declaration of policy.--It
25 is hereby determined by the General Assembly of Pennsylvania and
26 declared as a matter of legislative findings that:
27 (1) Present mine subsidence legislation and coal mining laws
28 have failed to protect the public interest in Pennsylvania in
29 preserving our land.
30 (2) Damage from mine subsidence has seriously impeded land
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1 development of the Commonwealth.
2 (3) Damage from mine subsidence has caused a very clear and
3 present danger to the health, safety and welfare of the people
4 of Pennsylvania.
5 (4) Damage by subsidence erodes the tax base of the affected
6 municipalities.
7 (5) Coal and related industries and their continued
8 operation are important to the economic welfare and growth of
9 the Commonwealth.
10 (6) In the past, owners of surface structures have not in
11 many instances received adequate notice or knowledge regarding
12 subsurface support, or lack thereof, for surface structures, and
13 therefore the State must exercise its police powers for the
14 protection of the structures covered herein.
15 (7) In order to prevent the occurrence of such state of
16 affairs in the future, the deed notice provisions relating to
17 such subsurface support, or lack thereof to a person desiring to
18 erect a surface structure after the effective date of this act,
19 must be emphasized and strengthened and it is necessary to make
20 available to those persons desiring to erect a surface structure
21 procedures whereby adequate support of such structure can be
22 acquired.
23 The Pennsylvania General Assembly therefore declares it to be
24 the policy of the Commonwealth of Pennsylvania that:
25 (1) The protection of surface structures and better land
26 utilization are of utmost importance to Pennsylvania.
27 (2) Damage to surface structures and the land supporting
28 them caused by mine subsidence is against the public interest
29 and may adversely affect the health, safety and welfare of our
30 citizens.
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1 (3) The prevention or restoration of damage from mine
2 subsidence is recognized as being related to the economic future
3 and well-being of Pennsylvania.
4 (4) The preservation within the Commonwealth of surface
5 structures and the land supporting them is necessary for the
6 safety and welfare of the people.
7 (5) It is the intent of this act to harmonize the protection
8 of surface structures and the land supporting them and the
9 continued growth and development of the bituminous coal industry
10 in the Commonwealth.
11 (6) [It is necessary to provide for the protection of those
12 presently existing structures which are or may be damaged due to
13 mine subsidence.] It is necessary to develop an adequate remedy
14 for the restoration and replacement of water supplies affected
15 by underground mining.
16 (7) It is necessary to develop a remedy for the restoration
17 or replacement of, or compensation for surface structures
18 damaged by underground mining.
19 [(7)] (8) It is necessary to provide a method whereby
20 surface structures erected after the effective date of this act
21 may be protected from damage arising from mine subsidence.
22 Section 3. Section 4 of the act is repealed.
23 Section 4. Section 5(b) of the act, amended October 10, 1980
24 (P.L.874, No.156), is amended to read:
25 Section 5. Permit; application; map or plan; bond or other
26 security; filing; general rulemaking authority; prevention of
27 damage; mine stability; maintenance of use and value of lands.--
28 * * *
29 (b) The department shall require the applicant to file a
30 bond or other security as recited in section [6(b)] 6(a), to
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1 insure the applicant's faithful performance of mining or mining
2 operations[, in accordance with the provisions of section 4].
3 * * *
4 Section 5. The act is amended by adding sections to read:
5 Section 5.1. Restoration or replacement of water supplies
6 affected by underground mining.--(a) (1) After the effective
7 date of this section, any mine operator who, as a result of
8 underground mining operations, affects a public or private water
9 supply by contamination, diminution, or interruption shall
10 restore or replace the affected supply with an alternate source
11 which adequately services in quantity and quality the premining
12 uses of the supply or any reasonably foreseeable uses of the
13 supply.
14 (2) A restored or replacement water supply shall be deemed
15 adequate where it differs in quality from the premining supply,
16 providing it meets standards set forth in the act of May 1, 1984
17 (P.L.206, No.43), known as the "Pennsylvania Safe Drinking Water
18 Act," or is comparable to the premining supply where that supply
19 did not meet such standards. If an operator fails to comply with
20 this provision, the Secretary of Environmental Resources shall
21 issue such orders to the operator as are necessary to assure
22 compliance.
23 (3) For the purposes of this section, the term "water
24 supply" shall include any existing source of water used for
25 domestic, commercial, industrial or recreational purposes or for
26 agricultural uses, including use or consumption of water to
27 maintain the health and productivity of animals used or to be
28 used in agricultural production and the watering of lands on a
29 periodic or permanent basis by a constructed or manufactured
30 system in place on the effective date of this act to provide
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1 irrigation for agricultural production of plants and crops at
2 levels of productivity or yield historically experienced by such
3 plants or crops within a particular geographic area, or which
4 serves any public building or any noncommercial structure
5 customarily used by the public, including, but not limited to,
6 churches, schools and hospitals.
7 (b) A mine operator shall not be liable to restore or
8 replace a water supply under the provisions of this section if a
9 claim of contamination, diminution or interruption is made more
10 than two years after the supply has been adversely affected.
11 Section 5.2. Procedures for securing restoration or
12 replacement of affected water supplies; duties of Department of
13 Environmental Resources.--(a) (1) Whenever a landowner or
14 water user experiences contamination, diminution or interruption
15 of a water supply which is believed to have occurred as a result
16 of underground coal mining operations, that landowner or water
17 user shall notify the mine operator who shall with reasonable
18 diligence investigate the water loss.
19 (2) Where the presumption of subsection (c) applies and the
20 user is without a readily available alternate source, the
21 operator shall provide a temporary water supply within twenty-
22 four hours of being contacted by the landowner or water user.
23 (3) If a temporary water supply is not provided within
24 twenty-four hours, the Department of Environmental Resources,
25 after notice by the landowner or water user, shall order the
26 operator to provide temporary water within twenty-four hours.
27 The operator shall notify the department of any claim of
28 contamination, diminution or interruption made to it by a
29 landowner or water user and its disposition.
30 (b) (1) If the affected water supply has not been restored
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1 or an alternate source has not been provided by the operator, or
2 if an operator ceases to provide an alternate source, the
3 landowner or water user may so notify the department and request
4 that an investigation be conducted.
5 (2) Within ten days of such notification, the department
6 shall investigate any such claim and shall, within forty-five
7 days following notification, make a determination of whether the
8 contamination, diminution or interruption was caused by the
9 underground mining operation and so notify all affected parties.
10 If it finds causation, it shall issue such orders to the mine
11 operator as are necessary to assure compliance with this
12 section. Such orders may include orders requiring the temporary
13 replacement of a water supply where it is determined that the
14 contamination, diminution or interruption may be of limited
15 duration, orders requiring the provision of immediate temporary
16 water to the landowner, or orders requiring the provision of a
17 permanent alternate source where the contamination, diminution
18 or interruption does not abate within three years of the date on
19 which the supply was adversely affected.
20 (c) In any determination or proceeding under this section,
21 it shall be presumed that an underground mine operator is
22 responsible for the contamination, diminution or interruption of
23 a water supply that is within an area above the mine determined
24 by projecting a thirty-five degree angle from the vertical from
25 the outside of any coal removal area. The mine operator may
26 successfully rebut the presumption by affirmatively proving that
27 access was denied to the property on which the supply is located
28 to conduct premining and postmining surveys of the quality and
29 quantity of the supply, that the mine operator thereafter served
30 notice upon the landowner by certified mail or personal service,
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1 which notice identified the rights established by sections 5.1,
2 5.2 and 5.3, that access had been denied and the landowner
3 failed to provide or authorize access within ten days after
4 receipt thereof.
5 (d) Unless the presumption contained in subsection (c)
6 applies, a landowner, the department or any affected user
7 asserting contamination, diminution or interruption shall have
8 the burden to affirmatively prove that underground mining
9 activity caused the contamination, diminution or interruption.
10 Wherever a mine operator, upon request, has been denied access
11 to conduct a premining survey and the mine operator thereafter
12 served notice upon the landowner by certified mail or personal
13 service, which notice identified the rights established by
14 sections 5.1, 5.2 and 5.3, was denied access and the landowner
15 failed to provide or authorize access within ten days after
16 receipt thereof, then such affirmative proof shall include
17 premining baseline data, provided by the landowner or the
18 department, relative to the affected water supply.
19 (e) A mine operator shall be relieved of liability for
20 affecting a public or private water supply by contamination,
21 diminution or interruption by affirmatively proving one of the
22 following defenses:
23 (1) The contamination, diminution or interruption existed
24 prior to the mining activity as determined by a premining
25 survey.
26 (2) The contamination, diminution or interruption occurred
27 more than three years after mining activity occurred.
28 (3) The contamination, diminution or interruption occurred
29 as the result of some cause other than the mining activity.
30 (f) Any mine operator who obtains water samples in a
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1 premining or postmining survey shall utilize a certified
2 laboratory to analyze such samples and shall submit copies of
3 the results of such analysis, as well as the results of any
4 quantitative analysis, to the department and to the landowner
5 within thirty days of their receipt. Nothing contained herein
6 shall be construed as prohibiting a landowner or water user from
7 utilizing an independent certified laboratory to sample and
8 analyze the water supply.
9 (g) If an affected water supply is not restored or
10 reestablished or a permanent alternate source is not provided
11 within three years, the mine operator may be relieved of further
12 responsibility by entering into a written agreement providing
13 compensation acceptable to the landowner. If no agreement is
14 reached, the mine operator, at the option of the landowner,
15 shall:
16 (1) purchase the property for a sum equal to its fair market
17 value immediately prior to the time the water supply was
18 affected; or
19 (2) make a one-time payment equal to the difference between
20 the property's fair market value immediately prior to the time
21 the water supply was affected and at the time payment is made.
22 Whereupon the mine operator shall be relieved of further
23 obligation regarding contamination, diminution or interruption
24 of the affected water supply under this act. Any measures taken
25 under sections 5.1, 5.2 and 5.3 to relieve a mine operator of
26 further obligation regarding contamination, diminution or
27 interruption of an affected water supply shall not be deemed to
28 bar a subsequent purchaser of the land on which the affected
29 water supply was located or any water user on such land from
30 invoking rights under this section for contamination, diminution
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1 or interruption of a water supply resulting from subsequent
2 mining activity other than that contemplated by the mine plan in
3 effect at the time the original supply was affected.
4 (h) For purposes of this section, a permanent alternate
5 source shall include any well, spring, municipal water supply
6 system or other supply approved by the department, which is
7 adequate in quantity, quality and of reasonable cost to serve
8 the premining uses of the affected water supply.
9 (i) The department may require an operator to describe how
10 water supplies will be replaced. Nothing contained herein shall
11 be construed as authorizing the department to require a mine
12 operator to provide a replacement water supply prior to mining
13 as a condition of securing a permit to conduct underground coal
14 mining.
15 (j) Any landowner, water user or mine operator aggrieved by
16 an order or determination of the department issued under this
17 section shall have the right to appeal such order to the
18 Environmental Hearing Board within thirty days of receipt of the
19 order.
20 Section 5.3. Voluntary agreement; restoration or replacement
21 of water; deed recital.--(a) Nothing contained in this act
22 shall prohibit the mine operator and landowner at any time after
23 the effective date of this section from voluntarily entering
24 into an agreement establishing the manner and means by which an
25 affected water supply is to be restored or an alternate supply
26 is to be provided or providing fair compensation for such
27 contamination, diminution or interruption. Any release contained
28 in such an agreement shall only be valid in releasing the
29 operator from liability for affecting a public or private water
30 supply by contamination, diminution or interruption if all of
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1 the following apply:
2 (1) It clearly states what rights are established by this
3 act.
4 (2) The landowner expressly acknowledges their release for
5 the consideration rendered.
6 (3) The contamination, diminution or interruption of the
7 water supply occurs as a result of the mining contemplated by
8 the agreement.
9 (4) The term of the release does not exceed thirty-five
10 years.
11 (b) In every deed for the conveyance of property for which
12 an agreement executed pursuant to subsection (a) is effective at
13 the time of transfer, the grantor shall include in the deed a
14 recital of the agreement and any release contained therein.
15 (c) Nothing contained in this act shall prevent any
16 landowner or water user who claims contamination, diminution or
17 interruption of a water supply from seeking any other remedy
18 that may be provided at law or in equity. In any proceedings in
19 pursuit of a remedy other than as provided herein, the
20 provisions of this act shall not apply and the party or parties
21 against whom liability is sought to be imposed may assert in
22 defense any rights or waivers arising from provisions contained
23 in deeds, leases or agreements pertaining to mining rights or
24 coal ownership on the property in question.
25 Section 5.4. Restoration or compensation for structures
26 damaged by underground mining.--(a) Whenever underground mining
27 operations conducted under this act cause damage to any of the
28 following surface buildings overlying or in the proximity of the
29 mine:
30 (1) any building which is accessible to the public,
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1 including, but not limited to, commercial, industrial and
2 recreational buildings and all permanently affixed structures
3 appurtenant thereto;
4 (2) any noncommercial buildings customarily used by the
5 public, including, but not limited to, schools, churches and
6 hospitals;
7 (3) dwellings used for human habitation and permanently
8 affixed appurtenant structures or improvements in place on the
9 effective date of this section or on the date of first
10 publication of the application for a Mine Activity Permit for
11 the operations in question and within the boundary of the entire
12 mine as depicted in said application; or
13 (4) the following agricultural structures: all barns and
14 silos, and all permanently affixed structures of five hundred or
15 more square feet in area that are used for raising livestock,
16 poultry or agricultural products, for storage of animal waste,
17 or for the processing or retail marketing of agricultural
18 products produced on the farm on which such structures are
19 located;
20 the operator of such coal mine shall repair such damage or
21 compensate the owner of such building for the reasonable cost of
22 its repair or the reasonable cost of its replacement where the
23 damage is irreparable.
24 (b) For any irreparably damaged agricultural structure
25 identified in subsection (a)(4) which, at the time of damage the
26 operator can affirmatively prove was being used for a different
27 purpose than the purpose for which such structure was originally
28 constructed, the operator may provide for the reasonable cost to
29 replace the damaged structure with a structure satisfying the
30 functions and purposes served by the damaged structure before
19910H1828B3883 - 13 -
1 such damage occurred.
2 (c) A mine operator shall not be liable to repair or
3 compensate for subsidence damage if the mine operator, upon
4 request, is denied access to the property upon which the
5 building is located to conduct premining and postmining surveys
6 of the building and surrounding property, and thereafter serves
7 notice upon the landowner by certified mail or personal service,
8 which notice identifies the rights established by sections 5.4,
9 5.5 and 5.6, the mine operator was denied access and the
10 landowner failed to provide or authorize access within ten days
11 after receipt thereof.
12 Section 5.5. Procedure for securing repair and/or
13 compensation for damage to structures caused by underground
14 mining; duties of Department of Environmental Resources.--(a)
15 The owner of any building enumerated in section 5.4(a) who
16 believes that the removal of coal has caused mine subsidence
17 resulting in damage to such building and who wishes to secure
18 repair of or compensation for such damage shall notify the mine
19 operator. If the mine operator agrees that mine subsidence
20 damaged such building, he shall cause such damage to be fully
21 repaired or compensate the owner for such damage in accordance
22 with section 5.4(a) or with an agreement reached between the
23 parties either prior to mining or after the damage has occurred.
24 (b) If the parties are unable to agree within six months of
25 the date of notice as to the cause of the damage or the
26 reasonable cost of repair or compensation, the owner of the
27 building may file a claim in writing with the Department of
28 Environmental Resources, a copy of which shall be sent to the
29 operator. All claims under this subsection shall be filed within
30 two years of the date damage to the building occurred.
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1 (c) The department shall make an investigation of a claim
2 within thirty days of receipt of the claim. The department
3 shall, within sixty days following the investigation, make a
4 determination in writing as to whether the damage was caused by
5 subsidence due to underground coal mining and, if so, the
6 reasonable cost of repairing or replacing the damaged structure.
7 If the department finds the damage to be caused by the mining,
8 it shall issue a written order directing the operator to
9 compensate or to cause repairs to be made within six months or a
10 longer period if the department finds that occurrence of
11 subsidence or subsequent damage may occur to the same building
12 as a result of mining.
13 (d) In no event shall the mine operator be liable for
14 repairs or compensation in an amount exceeding the cost of
15 replacement of the damaged structure. The occupants of a damaged
16 structure shall also be entitled to additional payment for
17 reasonable, actual expenses incurred for temporary relocation
18 and for other actual reasonable, incidental costs agreed to by
19 the parties or approved by the department.
20 (e) If either the landowner or the mine operator is
21 aggrieved by an order issued by the department under sections
22 5.4 or 5.5 such person shall have the right to appeal the order
23 to the Environmental Hearing Board within thirty days of receipt
24 of the order. The appeal of a mine operator shall not be
25 considered to be perfected unless within sixty days of the date
26 on which the mine operator received the department's order, the
27 operator has deposited an amount equal to the cost of repair or
28 the compensation amount ordered by the department in an
29 interest-bearing escrow account administered for such purposes
30 by the department.
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1 (f) If the mine operator shall fail to repair or compensate
2 for subsidence damage within six months or such longer period as
3 the department has established, or shall fail to perfect an
4 appeal of the department's order directing such repair or
5 compensation, the department shall issue such orders and take
6 such actions as are necessary to compel compliance with the
7 requirements hereof, including, but not limited to, cessation
8 orders and permit revocation. If the mine operator fails to
9 repair or compensate for damage after exhausting its right of
10 appeal, the department shall pay the escrow deposit made with
11 respect to the particular claim involved and accrued interest to
12 the owner of the damaged building.
13 (g) Except as provided in subsection (f), the existence of
14 unresolved claims of subsidence damage shall not be used by the
15 department as a basis for withholding permits from or suspending
16 review of permit applications submitted by the mine operator
17 against whom such claims have been made.
18 Section 5.6. Voluntary agreements for repair or compensation
19 for damages to structures caused by underground mining; deed
20 recital.--(a) Nothing contained in this act shall prohibit the
21 mine operator and the landowner at any time after the effective
22 date of this section from voluntarily entering into an agreement
23 establishing the manner and means by which repair or
24 compensation for subsidence damage is to be provided. Any
25 release contained in such an agreement shall only be valid in
26 releasing the operator from liability under this act if it
27 clearly states what rights are established by this act and the
28 landowner expressly acknowledges the release as consideration
29 for the alternate remedies provided under the agreement. Any
30 such release shall be null and void if no mining occurs for a
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1 period of thirty-five years within the coal field of which the
2 coal underlying the affected surface property forms a part.
3 (b) In every deed for the conveyance of property for which
4 an agreement executed pursuant to subsection (a) is effective,
5 the grantor, at the time of transfer, shall include in the deed
6 a recital of the agreement and any release contained therein.
7 (c) The duty created by section 5.5 to repair or compensate
8 for subsidence damage to the buildings enumerated in section
9 5.4(a) shall be the sole and exclusive remedy for such damage
10 and shall not be diminished by the existence of contrary
11 provisions in deeds, leases or agreements which relieved mine
12 operators from such duty. Nothing herein shall impair agreements
13 entered into after April 27, 1966, and prior to the effective
14 date of this section, which, for valid consideration, provide
15 for a waiver or release of any duty to repair or compensate for
16 subsidence damage. Any such waiver or release shall only be
17 valid with respect to damage resulting from the mining activity
18 contemplated by such agreement.
19 (d) In every deed for the conveyance of property for which
20 an agreement executed pursuant to subsection (c) is effective at
21 the time of transfer, the grantor shall include in the deed a
22 recital of the agreement and any release contained therein.
23 Section 6. Section 6 of the act, amended October 10, 1980
24 (P.L.874, No.156), is amended to read:
25 Section 6. Repair of damage or satisfaction of claims;
26 revocation or suspension of permit; bond or collateral.--[(a)
27 If the removal of coal or other mining operations by a holder of
28 a permit granted under section 5 causes damage to structures set
29 forth in section 4 of this act the permittee shall submit
30 evidence that such damage has been repaired or that all claims
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1 arising therefrom have been satisfied, to the department within
2 six months from the date that the permittee knows, or has reason
3 to know, such damage has occurred or, at the option of the
4 permittee, within such period there shall be deposited with the
5 Secretary of Environmental Resources as security for such repair
6 or such satisfaction a sum of money in an amount equal to said
7 damage or the reasonable cost of repair thereof, as estimated by
8 a reputable expert. In default of the filing of such evidence or
9 such deposit, the department shall suspend or revoke said
10 permit.
11 No permit revoked or suspended pursuant to this section shall
12 be reissued or reinstated until the applicant shall have
13 furnished satisfactory evidence to the department that the
14 damage for which the permit was revoked or suspended has been
15 repaired or all claims arising therefrom satisfied, in
16 accordance with this subsection.]
17 (b) The department shall require the applicant to file a
18 bond in a form prescribed by the secretary payable to the
19 Commonwealth and conditioned upon the applicant's faithful
20 performance of mining or mining operations, in accordance with
21 the provisions of sections [4 and 5] 5, 5.4, 5.5 and 5.6. Such
22 bond shall be in a reasonable amount as determined by the
23 department. Liability under such bond shall continue for the
24 duration of the mining or mining operation, and for a period of
25 ten years thereafter or such longer period of time as may be
26 prescribed by rules and regulations promulgated hereunder, at
27 which time the bond shall become of no force and effect, and it,
28 or any cash or securities substituted for it as hereinafter
29 provided, shall be returned to the applicant. Upon application
30 of any proper party in interest, the department, after due
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1 notice to any person who may be affected thereby, and hearing,
2 in accordance with the provisions of section 5(g), may order the
3 amount of said bond to be increased or reduced or may excuse the
4 permit holder from any further duty of keeping in effect any
5 bond furnished pursuant to a prior order of the department and
6 return said bond, or the securities or cash posted in lieu
7 thereof, to the permit holder, notwithstanding any different
8 provision herein respecting the duration or term of said bond.
9 Such bond shall be executed by the applicant and a corporate
10 surety licensed to do business in the Commonwealth: Provided,
11 however, That the applicant may elect to deposit cash,
12 automatically renewable irrevocable bank letters of credit which
13 may be terminated by the bank at the end of a term only upon the
14 bank giving ninety days prior written notice to the permittee
15 and the department or negotiable bonds of the United States
16 Government or the Commonwealth of Pennsylvania, the Pennsylvania
17 Turnpike Commission, the General State Authority, the State
18 Public School Building Authority, or any municipality within the
19 Commonwealth, with the department in lieu of a corporate surety.
20 The cash deposit or irrevocable letter of credit or market value
21 of such negotiable bonds shall be at least equal to the sum of
22 the bond. Where the mining operation is reasonably anticipated
23 to continue for a period of at least ten years from the date of
24 application, the operator may, as an alternative, deposit
25 collateral and file a collateral bond as provided for in this
26 section according to the following phased deposit schedule. The
27 operator shall, prior to commencing operations, deposit ten
28 thousand dollars ($10,000.00) or 25% of the amount determined
29 under this subsection, whichever is greater. The operator shall
30 thereafter annually deposit 10% of the remaining bond amount for
19910H1828B3883 - 19 -
1 ten years. Interest accumulated by such collateral shall become
2 a part of the bond. The department may require additional
3 bonding at any time to meet the intent of this subsection. The
4 collateral shall be deposited, in trust, with the State
5 Treasurer, or with a bank, selected by the department, which
6 shall act as trustee for the benefit of the Commonwealth,
7 according to rules and regulations promulgated hereunder, to
8 guarantee the operator's compliance with this act. The operator
9 shall be required to pay all costs of the trust. The collateral
10 deposit, or part thereof, shall be released of liability and
11 returned to the operator, together with a proportional share of
12 accumulated interest, upon the conditions of and pursuant to the
13 schedule for release provided for by rules and regulations
14 promulgated hereunder. In lieu of the bond required by this
15 section, the department may require the operator of an
16 underground mining operation to purchase subsidence insurance,
17 as provided by the act of August 23, 1961 (P.L.1068, No.484),
18 entitled, as amended, "An act to provide for the creation and
19 administration of a Coal and Clay Mine Subsidence Insurance Fund
20 within the Department of Environmental Resources for the
21 insurance of compensation for damages to subscribers thereto;
22 declaring false oaths by the subscribers to be misdemeanors;
23 providing penalties for the violation thereof; and making an
24 appropriation," for the benefit of all surface property owners
25 who may be affected by damage caused by subsidence. The
26 insurance coverage shall be in an amount determined by the
27 department to be sufficient to remedy any and all damage. The
28 term of this obligation shall be for the duration of the mining
29 and reclamation operation and for ten years thereafter. For all
30 other surface effects of underground mining, the operator shall
19910H1828B3883 - 20 -
1 post a bond as required by this section. The department shall,
2 upon receipt of any such deposit of cash or irrevocable letter
3 of credit or negotiable bonds, immediately place the same with
4 the State Treasurer, whose duty it shall be to receive and hold
5 the same in the name of the Commonwealth, in trust, for the
6 purposes for which such deposit is made. The State Treasurer
7 shall at all times be responsible for the custody and
8 safekeeping of such deposits. The applicant making the deposit
9 shall be entitled from time to time to demand and receive from
10 the State Treasurer, on the written order of the department, the
11 whole or any portion of any collateral so deposited, upon
12 depositing with him, in lieu thereof, other collateral of the
13 classes herein specified having a market value at least equal to
14 the sum of the bond, and also to demand, receive and recover the
15 interest and income from said negotiable bonds as the same
16 become due and payable: Provided, however, That where negotiable
17 bonds, deposited as aforesaid, mature or are called, the State
18 Treasurer, at the request of the applicant, shall convert such
19 negotiable bonds into such other negotiable bonds of the classes
20 herein specified as may be designated by the applicant: And
21 provided further, That where notice of intent to terminate a
22 letter of credit is given, the department shall give the
23 permittee thirty days written notice to replace the letter of
24 credit with other acceptable bond guarantees as provided herein,
25 and if the permittee fails to replace the letter of credit
26 within the thirty-day notification period, the department shall
27 draw upon and convert such letter of credit into cash and hold
28 it as a collateral bond guarantee.
29 The department, in its discretion, may accept a self-bond
30 from the permittee, without separate surety, if the permittee
19910H1828B3883 - 21 -
1 demonstrates to the satisfaction of the department a history of
2 financial solvency, continuous business operation and continuous
3 efforts to achieve compliance with all United States of America
4 and Pennsylvania environmental laws, and, meets all of the
5 following requirements:
6 (1) The permittee shall be incorporated or authorized to do
7 business in Pennsylvania and shall designate an agent in
8 Pennsylvania to receive service of suits, claims, demands or
9 other legal process.
10 (2) The permittee or if the permittee does not issue
11 separate audited financial statements, its parent, shall provide
12 audited financial statements for at least its most recent three
13 fiscal years prepared by a certified public accountant in
14 accordance with generally accepted accounting principles. Upon
15 request of the permittee, the department shall maintain the
16 confidentiality of such financial statements if the same are not
17 otherwise disclosed to other government agencies or the public.
18 (3) During the last thirty-six calendar months, the
19 applicant has not defaulted in the payment of any dividend or
20 sinking fund installment or preferred stock or installment on
21 any indebtedness for borrowed money or payment of rentals under
22 long-term leases or any reclamation fee payment currently due
23 under the Federal Surface Mining Control and Reclamation Act of
24 1977, 30 U.S.C. § 1232, for each ton of coal produced in the
25 Commonwealth of Pennsylvania.
26 (4) The permittee shall have been in business and operating
27 no less than ten years prior to filing of application unless the
28 permittee's existence results from a reorganization,
29 consolidation or merger involving a company with such longevity.
30 However, the permittee shall be deemed to have met this
19910H1828B3883 - 22 -
1 requirement if it is a majority-owned subsidiary of a
2 corporation which has such a ten-year business history.
3 (5) The permittee shall have a net worth of at least six
4 times the aggregate amount of all bonds applied for by the
5 operator under this section.
6 (6) The permittee shall give immediate notice to the
7 department of any significant change in managing control of the
8 company.
9 (7) A corporate officer of the permittee shall certify to
10 the department that forfeiture of the aggregate amounts of self-
11 bonds furnished for all operations hereunder would not
12 materially affect the permittee's ability to remain in business
13 or endanger its cash flow to the extent it could not meet its
14 current obligations.
15 (8) The permittee may be required by the department to
16 pledge real and personal property to guarantee the permittee's
17 self-bond. The department is authorized to acquire and dispose
18 of such property in the event of a default to the bond
19 obligation and may use the moneys in the Bituminous Mine
20 Subsidence and Land Conservation Fund to administer this
21 provision.
22 (9) The permittee may be required to provide third party
23 guarantees or indemnifications of its self-bond obligations.
24 (10) The permittee shall provide such other information
25 regarding its financial solvency, continuous business operation
26 and compliance with environmental laws as the department shall
27 require.
28 (11) An applicant shall certify to the department its
29 present intention to maintain its present corporate status for a
30 period in excess of five years.
19910H1828B3883 - 23 -
1 (12) A permittee shall annually update the certifications
2 required hereunder and provide audited financial statements for
3 each fiscal year during which it furnishes self-bonds.
4 (13) The permittee shall pay an annual fee in the amount
5 determined by the department of the cost to review and verify
6 the permittee's application for self-bonding and annual
7 submissions thereafter.
8 (c) If it shall be determined by the department that the
9 holder of a permit issued pursuant to the provisions of this act
10 who has furnished a bond under this section, has failed or
11 refused to comply with the provisions of this act, the
12 department shall certify such determination to the Attorney
13 General. The Attorney General shall proceed immediately to enter
14 suit upon said bond and to collect such amount as may be
15 necessary to redress or repair the damage occasioned by such
16 violation, together with the costs of said proceedings. Where
17 the holder of the permit has deposited cash or negotiable bonds
18 as collateral in lieu of a corporate surety, the department
19 shall declare such collateral forfeited and shall direct the
20 State Treasurer to pay said funds or proceed to sell said
21 collateral and pay the proceeds thereof to the department to be
22 used in accordance with the purposes of this section. Should the
23 amount so collected be insufficient to redress or repair the
24 damage, the owner, operator, lessor, lessee, general manager,
25 and superintendent or other person having charge of said mine or
26 mining operation, shall be jointly and severally liable for the
27 deficiency. Should the amount so collected exceed the amount
28 necessary to restore or repair the damage occasioned by such
29 violation, such excess shall be held by the department as
30 collateral for future damage contemplated herein until all
19910H1828B3883 - 24 -
1 liability of the permittee is released.
2 Section 7. The act is amended by adding a section to read:
3 Section 9.1. Prevention of hazards to human safety and
4 material damage to certain buildings.--(a) If the Department of
5 Environmental Resources determines, and so notifies the mine
6 operator, that a proposed mining technique or extraction ratio
7 will result in subsidence which creates an imminent hazard to
8 human safety, utilization of such technique or extraction ratio
9 shall not be permitted unless the mine operator, prior to
10 mining, takes measures approved by the department to eliminate
11 the imminent hazard to human safety.
12 (b) If the department determines, and so notifies the mine
13 operator, that a proposed mining technique or extraction ratio
14 will cause subsidence which will result in irreparable damage to
15 a building enumerated in section 5.4(a)(3) or (4), utilization
16 of such technique or extraction ratio shall not be permitted
17 unless the building owner, prior to mining, consents to such
18 mining, or the mine operator, prior to mining, agrees to take
19 measures approved by the department to minimize or reduce
20 impacts resulting from subsidence to such buildings.
21 (c) Underground mining activities shall not be conducted
22 beneath or adjacent to:
23 (1) public buildings and facilities;
24 (2) churches, schools or hospitals;
25 (3) impoundments with a storage capacity of twenty acre-feet
26 or more; or
27 (4) bodies of water with a volume of twenty acre-feet or
28 more;
29 unless the subsidence control plan demonstrates that subsidence
30 will not cause material damage to, or reduce the reasonably
19910H1828B3883 - 25 -
1 foreseeable use of, such features or facilities. If the
2 department determines that it is necessary, in order to minimize
3 the potential for material damage to the features or facilities
4 described above or to any aquifer or body of water that serves
5 as a significant water source for any public water supply
6 system, it may limit the percentage of coal extracted under or
7 adjacent thereto.
8 (D) NOTHING IN THIS ACT SHALL BE CONSTRUED TO AMEND, MODIFY <--
9 OR OTHERWISE SUPERSEDE STANDARDS RELATED TO PREVAILING
10 HYDROLOGIC BALANCE CONTAINED IN THE SURFACE MINING CONTROL AND
11 RECLAMATION ACT OF 1977 (PUBLIC LAW 95-87, 30 U.S.C. § 1201 ET
12 SEQ.) AND REGULATIONS PROMULGATED BY THE ENVIRONMENTAL QUALITY
13 BOARD FOR THE PURPOSE OF OBTAINING OR MAINTAINING PRIMARY
14 JURISDICTION OVER THE ENFORCEMENT AND ADMINISTRATION OF THAT
15 ACT, NOR ANY STANDARD CONTAINED IN THE ACT OF JUNE 22, 1937
16 (P.L.1987, NO.394), KNOWN AS "THE CLEAN STREAMS LAW," OR ANY
17 REGULATION PROMULGATED THEREUNDER BY THE ENVIRONMENTAL QUALITY
18 BOARD.
19 Section 8. Section 15 of the act is repealed.
20 Section 9. Section 17.1 of the act, added October 10, 1980
21 (P.L.874, No.156), is amended to read:
22 Section 17.1. Unlawful conduct.--It shall be unlawful to
23 fail to comply with any rule or regulation of the department or
24 to fail to comply with any order or permit of the department, to
25 violate any of the provisions of this act or rules and
26 regulations adopted hereunder or to violate any order or permit
27 of the department, [to cause land subsidence or injury] or to
28 hinder, obstruct, prevent or interfere with the department or
29 its personnel in the performance of any duty hereunder,
30 including violating 18 Pa.C.S. §§ 4903 (relating to false
19910H1828B3883 - 26 -
1 swearing) and 4904 (relating to unsworn falsification to
2 authorities). Any person or municipality engaging in such
3 conduct shall be subject to the provisions of sections 13 and
4 17.
5 Section 10. The act is amended by adding a section to read:
6 Section 18.1. Compilation and analysis of data.--(a) The
7 department shall compile, on an ongoing basis, the information
8 contained in deep mine permit applications, in monitoring
9 reports and other data submitted by operators, from enforcement
10 actions and from any other appropriate source for the purposes
11 set forth below.
12 (b) Such data shall be analyzed by the department, utilizing
13 the services of professionals or institutions recognized in the
14 field, for the purpose of determining, to the extent possible,
15 the effects of deep mining on subsidence of surface structures
16 and features and on water resources, including sources of public
17 and private water supplies.
18 (c) The analysis of such data and any relevant findings
19 shall be presented in report form to the Governor, the General
20 Assembly and to the Citizens Advisory Council of the department
21 at five-year intervals, commencing in 1991.
22 (d) Nothing contained herein shall be construed as
23 authorizing the department to require a mine operator to submit
24 additional information or data, except that it shall require
25 reporting of all water loss incidents or claims of water loss.
26 Section 11. This act shall take effect in 60 days.
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