PRIOR PRINTER'S NO. 926 PRINTER'S NO. 2399
No. 868 Session of 1999
INTRODUCED BY S. H. SMITH, TANGRETTI, HERSHEY, ARGALL, CAWLEY, GEIST, GEORGE, HALUSKA, HENNESSEY, HERMAN, LAUGHLIN, LEH, MICOZZIE, ROSS, SAYLOR, SERAFINI, STABACK, STERN, SURRA, TIGUE, TRELLO, YOUNGBLOOD, LEVDANSKY, STEELMAN, RAMOS, MAHER, COLAFELLA, LESCOVITZ, FARGO AND DeWEESE, MARCH 10, 1999
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES, OCTOBER 5, 1999
AN ACT 1 Providing immunity for certain persons who reclaim certain 2 abandoned lands or abate certain water pollution. 3 The General Assembly of the Commonwealth of Pennsylvania 4 hereby enacts as follows: 5 Section 1. Short title. 6 This act shall be known and may be cited as the Environmental 7 Good Samaritan Act. 8 Section 2. Findings. 9 The General Assembly finds and declares as follows: 10 (1) This Commonwealth's long history of mining and the 11 extraction of oil and gas has left some lands and waters 12 unreclaimed and polluted. 13 (2) These abandoned lands and polluted waters are 14 unproductive, erode the tax base and are serious impediments 15 to the economic welfare and growth of this Commonwealth. 16 (3) The unreclaimed lands and polluted waters present a
1 danger to the health, safety and welfare of the people and 2 the environment. 3 (4) This Commonwealth does not possess sufficient 4 resources to reclaim all the abandoned lands and to abate the 5 water pollution. 6 (5) Numerous landowners, citizens, watershed 7 associations, environmental organizations and governmental 8 entities who do not have a legal responsibility to reclaim 9 the abandoned lands or to abate the water pollution are 10 interested in addressing these problems but are reluctant to 11 engage in such reclamation and abatement activities because 12 of potential liabilities associated with the reclamation and 13 abatement activities. 14 (6) It is in the best interest of the health, safety and 15 welfare of the people of this Commonwealth and the 16 environment to encourage reclamation of the abandoned lands 17 and abatement of water pollution. 18 Section 3. Purpose. 19 This act is intended to encourage the improvement of land and 20 water adversely affected by mining and oil and gas extraction, 21 to aid in the protection of wildlife, to decrease soil erosion, 22 to aid in the prevention and abatement of the pollution of 23 rivers and streams, to protect and improve the environmental 24 values of this Commonwealth and to eliminate or abate hazards to 25 health and safety. It is the intent of the General Assembly to 26 encourage voluntary reclamation of lands adversely affected by 27 mining or oil or gas extraction. The purpose of this act is to 28 improve water quality and to control and eliminate water 29 pollution resulting from mining or oil or gas extraction or 30 exploration by limiting the liability which could arise as a 19990H0868B2399 - 2 -
1 result of the voluntary reclamation of abandoned lands or the 2 reduction and abatement of water pollution. This act is not 3 intended to limit the liability of a person who under existing 4 law is or may become responsible to reclaim the land or address 5 the water pollution or anyone who by contract, order or 6 otherwise is required to or agrees to perform the reclamation or 7 abate the water pollution. 8 Section 4. Definitions. 9 The following words and phrases when used in this act shall 10 have the meanings given to them in this section unless the 11 context clearly indicates otherwise: 12 "Approved project." A reclamation project or water pollution 13 abatement project approved by the Department of Environmental 14 Protection prior to completion. 15 "Consideration." Something of value promised, given or 16 performed in exchange for something which has the effect of 17 making a legally enforceable contract. For the purpose of this 18 act, the term does not include a promise to a landowner to 19 repair damage caused by a reclamation project or water pollution 20 abatement project when the promise is made in exchange for 21 access to the land. 22 "Department." The Department of Environmental Protection of 23 the Commonwealth. 24 "Eligible land and water." Land and water adversely affected 25 by mining or oil or gas extraction and left or abandoned in an 26 unreclaimed or inadequately reclaimed condition or left 27 discharging water pollution and for which no person has a 28 continuing reclamation or water pollution abatement obligation. 29 The term shall also include land and water adversely affected by 30 mining or oil or gas extraction and left in an unreclaimed or 19990H0868B2399 - 3 -
1 inadequately reclaimed condition or left discharging water 2 pollution for which the Department of Environmental Protection 3 has forfeited and collected the operators bonds and there is no 4 outstanding litigation concerning the bond forfeiture. 5 "Landowner." A person who holds either legal or equitable 6 interest in real property. 7 "Mineral." Any aggregate or mass of mineral matter, whether 8 or not coherent, which is extracted by mining, including, but 9 not limited to, limestone, dolomite, sand, gravel, slate, 10 argillite, diabase, gneiss, micaceous sandstone known as 11 bluestone, rock, stone, earth, fill, slag, iron ore, zinc ore, 12 vermiculite, clay and anthracite and bituminous coal. 13 "Person." A natural person, partnership, association, 14 association members, corporation, political subdivision of the 15 Commonwealth, an agency, instrumentality or entity of Federal or 16 State Government or other legal entity recognized by law as the 17 subject of rights and liabilities. 18 "Project work area." That land necessary for a person to 19 complete a reclamation project or a water pollution abatement 20 project. 21 "Reclamation project." The restoration of eligible lands and 22 water to productive use by regrading and revegetating the land 23 to stable contours that blend in and complement the drainage 24 pattern of the surrounding terrain with no highwalls, spoil 25 piles or depressions to accumulate water AND BY PLUGGING <-- 26 ABANDONED OIL OR GAS WELLS AND REMOVING PRODUCTION OF STORAGE 27 FACILITIES, SUPPLIES AND EQUIPMENT FROM AREAS DISTURBED IN 28 SITING, DRILLING, COMPLETING AND PRODUCING SUCH WELLS. 29 "Water pollution abatement facilities." The methods for 30 treatment or abatement of water pollution located on eligible 19990H0868B2399 - 4 -
1 lands and water. These methods include, but are not limited to, 2 a structure, system, practice, technique or method constructed, 3 installed or followed to reduce, treat or abate such water 4 pollution. 5 "Water pollution abatement project." A plan for treatment or 6 abatement of water pollution located on eligible lands and 7 water. These plans include, but are not limited to, the 8 practices to be followed and the installation, operation and 9 maintenance of facilities to reduce, treat or abate such water 10 pollution. 11 Section 5. Consultation with department. 12 (a) General rule.--Landowners and persons planning a 13 reclamation project or a water pollution abatement project may 14 notify the department of their proposed project. If notified, 15 the department shall review its files and advise whether any 16 person is legally responsible for the unreclaimed land or the 17 water pollution and whether the proposed project would be 18 located on eligible lands and water. 19 (b) Inventory of projects.--The department shall develop and 20 maintain a system to inventory and record each water pollution 21 abatement project and each reclamation project which is 22 submitted in writing, reviewed and approved by the department 23 before each project is completed. The approved project inventory 24 shall identify the land containing the project work area and 25 each landowner and each person who, through participation in the 26 reclamation project or water pollution abatement project, is 27 entitled to the protections and immunities provided by this act. 28 (c) Nature of department approval and identification.--For 29 the purposes of 2 Pa.C.S. Ch. 5 Subch. A (relating to practice 30 and procedure of Commonwealth agencies), the act of July 13, 19990H0868B2399 - 5 -
1 1988 (P.L.530, No.94), known as the Environmental Hearing Board 2 Act, and the Environmental Hearing Board's regulation at 25 Pa. 3 Code Ch. 1021 (relating to practice and procedures), the 4 following shall not be an adjudication or an action: 5 (1) The department's approval or disapproval of a 6 reclamation project or a water pollution abatement project. 7 (2) The department's identification or failure to 8 identify in the approved project inventory land containing 9 the project work area or a landowner or a person who 10 participated in a reclamation project or in a water pollution 11 abatement project. 12 (d) Presumptions.-- 13 (1) Every landowner and person identified in the 14 approved project inventory shall be presumed to be covered by 15 the protections and immunities provided by this act. This 16 presumption may be rebutted by clear and convincing evidence 17 that the landowner or person did not participate in an 18 approved reclamation project or water pollution abatement 19 project. 20 (2) A landowner or a person who participates in a 21 reclamation project or a water pollution abatement project 22 which is not an approved project is eligible for the 23 protections and immunities provided by this act but shall not 24 be entitled to the presumption provided by paragraph (1). 25 Section 6. Landowner liability limitation and exceptions. 26 (a) General rule.--Except as specifically provided in 27 subsections (b) and (c), a landowner who provides access to the 28 land, without charge or other consideration, which results in 29 the implementation of a reclamation project or a water pollution 30 abatement project: 19990H0868B2399 - 6 -
1 (1) Shall be immune from liability for any injury or 2 damage suffered by the person implementing the reclamation 3 project or the water pollution abatement project while the 4 person is within the project work area. 5 (2) Shall be immune from liability for any injury to or 6 damage suffered by a third party which arises out of or 7 occurs as a result of an act or omission of a person 8 implementing a reclamation project or water pollution 9 abatement project which occurs during the implementation of 10 the reclamation project or the water pollution abatement 11 project. 12 (3) Shall be immune from liability for any injury to or 13 damage suffered by a third party which arises out of or 14 occurs as a result of a reclamation project or a water 15 pollution abatement project. 16 (4) Shall not be deemed to assume legal responsibility 17 for or incur liability for any pollution resulting from a 18 reclamation project or water pollution abatement project. 19 (5) Shall not be subject to a citizen suit filed 20 pursuant to section 601 of the act of June 22, 1937 21 (P.L.1987, No.394), known as The Clean Streams Law, for 22 pollution resulting from a reclamation project or water 23 pollution abatement project. 24 (6) Shall be immune from liability for the operation, 25 maintenance or repair of the water pollution abatement 26 facilities constructed or installed during the project unless 27 the landowner negligently damages or destroys the water 28 pollution abatement facilities or denies access to those 29 persons who operate, maintain or repair the water pollution 30 abatement facilities. 19990H0868B2399 - 7 -
1 (b) Duty to warn.--A landowner shall warn a person 2 implementing a reclamation project or water pollution abatement 3 project of known, latent, dangerous conditions located on the 4 project work area which known, latent, dangerous conditions are 5 not the subject of the reclamation project or the water 6 pollution abatement project. Nothing in this act shall limit in 7 any way or affect a landowner's liability which results from the 8 landowner's failure to warn of such known, latent, dangerous 9 conditions. 10 (c) Exceptions to immunity.--Nothing is this act shall limit 11 in any way or affect a landowner's liability which results from 12 a reclamation project or water pollution abatement project and 13 which would otherwise exist: 14 (1) For injury or damage resulting from the landowner's 15 acts or omissions which are reckless or constitute gross 16 negligence or willful misconduct. 17 (2) Where the landowner charges an access fee or 18 requires other consideration before allowing access to the 19 land for the purpose of implementing a reclamation project or 20 water pollution abatement project or to operate, maintain or 21 repair water pollution abatement facilities constructed or 22 installed during a water pollution abatement project. 23 (3) For the landowner's unlawful activities. 24 Section 7. Project liability limitation and exceptions. 25 (a) General rule.--Except as specifically provided in 26 subsection (b), a person who implements or participates in a 27 reclamation project or a water pollution abatement project: 28 (1) Shall be immune from liability for any injury to or 29 damage suffered by a person which arises out of or occurs as 30 a result of the water pollution abatement facilities 19990H0868B2399 - 8 -
1 constructed or installed during the water pollution abatement 2 project. 3 (2) Shall be immune from liability for any pollution 4 emanating from the water pollution abatement facilities 5 constructed or installed during the water pollution abatement 6 project unless the person affects an area that is 7 hydrologically connected to the water pollution abatement 8 project work area and causes increased pollution by 9 activities which are unrelated to the implementation of a 10 water pollution abatement project. 11 (3) Shall not be deemed to assume responsibility for or 12 incur liability for the operation, maintenance and repair of 13 the water pollution abatement facilities constructed or 14 installed during the water pollution abatement project. 15 (4) Shall not be subject to a citizen suit under section 16 601 of the act of June 22, 1937 (P.L.1987, No.394), known as 17 The Clean Streams Law, for pollution emanating from the water 18 pollution abatement facilities constructed or installed 19 during the water pollution abatement project. 20 (b) Exceptions.-- 21 (1) Nothing in this act shall limit in any way the <-- 22 liability of a person who implements or participates in a 23 reclamation project or a water pollution abatement project 24 which liability results from the reclamation project or the 25 water pollution abatement project and which would otherwise 26 exist: 27 (1) (I) For injury or damage resulting from the <-- 28 person's acts or omissions which are reckless or 29 constitute gross negligence or willful misconduct. 30 (2) (II) For the person's unlawful activities. <-- 19990H0868B2399 - 9 -
1 (2) NOTHING IN THIS ACT SHALL LIMIT IN ANY WAY THE <-- 2 LIABILITY OF A PERSON WHO THE DEPARTMENT HAS FOUND TO BE IN 3 VIOLATION OF ANY OF THE FOLLOWING ACTS: 4 (I) THE ACT OF MAY 31, 1945 (P.L.1198, NO.418), 5 KNOWN AS THE SURFACE MINING CONSERVATION AND RECLAMATION 6 ACT. 7 (II) THE ACT OF APRIL 27, 1966 (1ST SP.SESS., 8 P.L.31, NO.1), KNOWN AS THE BITUMINOUS MINE SUBSIDENCE 9 AND LAND CONSERVATION ACT. 10 (III) THE ACT OF JULY 7, 1980 (P.L.380, NO.97), 11 KNOWN AS THE SOLID WASTE MANAGEMENT ACT. 12 (IV) ANY OTHER FEDERAL OR STATE STATUTE RELATING TO 13 ENVIRONMENTAL PROTECTION OR TO THE PROTECTION OF THE 14 PUBLIC HEALTH, SAFETY AND WELFARE. 15 Section 8. Permits and zoning. 16 Nothing in this act shall be construed as waiving any 17 existing permit requirements or waiving any local zoning 18 requirements. 19 Section 9. Relationship to Federal and State programs. 20 The provisions of this act shall not prevent the Commonwealth 21 from enforcing requirements necessary or imposed by the Federal 22 Government as a condition to receiving or maintaining program 23 authorization, delegation, primacy or Federal funds. 24 Section 10. General permits. 25 If the department determines it will further the purposes of 26 this act, the department may issue a general permit for each 27 reclamation project or water pollution abatement project, which 28 general permit shall: 29 (1) Encompass all of the activities included in that 30 reclamation project or water pollution abatement project. 19990H0868B2399 - 10 -
1 (2) Be issued in place of any required stream 2 encroachment, earth disturbance or national pollution 3 discharge elimination system permits. 4 Section 11. Exceptions. 5 (a) General rule.--Any person who under existing law shall 6 be or may become responsible to reclaim the land or treat or 7 abate the water pollution or any person who for payment or 8 consideration or who receives some other benefit through a 9 contract, or any person who through a consent order and 10 agreement or otherwise agrees or is ordered to perform or 11 complete reclamation or treat or abate water pollution as well 12 as a surety which provided a bond for the site shall not be 13 eligible for nor shall that person receive the benefit of the 14 protections and immunities available under this act. 15 (b) Projects near mining or coal refuse sites.--This act 16 shall not apply to a reclamation project or a water pollution 17 abatement project that is located adjacent to, hydrologically 18 connected to or in close proximity to a site permitted under the 19 act of May 31, 1945 (P.L.1198, No.418), known as the Surface 20 Mining Conservation and Reclamation Act, the act of April 27, 21 1966 (1st Sp.Sess., P.L.31, No.1), known as The Bituminous Mine 22 Subsidence and Land Conservation Act, the act of September 24, 23 1968 (P.L.1040, No.318), known as the Coal Refuse Disposal 24 Control Act, or the act of December 19, 1984 (P.L.1093, No.219), 25 known as the Noncoal Surface Mining Conservation and Reclamation 26 Act, unless: 27 (1) The reclamation project or water pollution abatement 28 project is submitted to the department in writing before the 29 project is started. 30 (2) The department finds: 19990H0868B2399 - 11 -
1 (i) The reclamation project or the water pollution 2 abatement project will not adversely affect the 3 permittee's obligations under the permit and the 4 applicable law. 5 (ii) The activities on the project work area cannot 6 be used by the permittee to avoid the permittee's 7 reclamation or water pollution treatment or abatement 8 obligations. 9 (3) The department issues a written notice of its 10 findings and the approval of the project. 11 (c) Projects in lieu of civil penalties.--This act shall not 12 apply to a reclamation project or a water pollution abatement 13 project that is performed in lieu of paying civil penalties. 14 (d) Land Recycling and Environmental Remediation Standards 15 Act.--The act of May 19, 1995 (P.L.4, No.2), known as the Land 16 Recycling and Environmental Remediation Standards Act to 17 reclamation projects or water pollution abatement projects 18 implemented under this act. 19 Section 12. Regulations. 20 The department may promulgate rules and regulations necessary 21 to implement the provisions of this act. 22 Section 13. Repeal. 23 All acts and parts of acts are repealed insofar as they are 24 inconsistent with this act. 25 Section 14. Effective date. 26 This act shall take effect in 60 days. B22L27JS/19990H0868B2399 - 12 -