PRINTER'S NO. 1364

THE GENERAL ASSEMBLY OF PENNSYLVANIA


HOUSE BILL

No. 1176 Session of 1983


        INTRODUCED BY LETTERMAN, DORR, CESSAR, BELFANTI, SHOWERS, GEIST,
           MISCEVICH, DOMBROWSKI, KOWALYSHYN, HAYES, SCHEETZ, SEMMEL,
           PETRARCA, MORRIS, DININNI, STEIGHNER, PETERSON, JACKSON,
           SALOOM, MOEHLMANN, MOWERY, D. R. WRIGHT, BOWSER, BURD, CLARK,
           OLASZ AND COY, JUNE 8, 1983

        REFERRED TO COMMITTEE ON MINES AND ENERGY MANAGEMENT,
           JUNE 8, 1983

                                     AN ACT

     1  Relating to noncoal surface mining conservation and reclamation.

     2                         TABLE OF CONTENTS
     3  Section  1.  Short title.
     4  Section  2.  Purpose of act.
     5  Section  3.  Definitions.
     6  Section  4.  Operator's license.
     7  Section  5.  Specifications for construction projects.
     8  Section  6.  Mining permit; reclamation plan; bond.
     9  Section  7.  Public health and safety.
    10  Section  8.  Violation notices; suspension of license; cease and
    11                 desist orders.
    12  Section  9.  Mine conservation inspectors.
    13  Section 10.  Local ordinances.
    14  Section 11.  Noncoal Surface Mining Conservation and Reclamation
    15                 Fund.


     1  Section 12.  Release of operator on transfer of operation.
     2  Section 13.  Injunctive relief.
     3  Section 14.  Remedies of citizens.
     4  Section 15.  Existing licenses and permits.
     5  Section 16.  Repeals.
     6  Section 17.  Effective date.
     7     The General Assembly of the Commonwealth of Pennsylvania
     8  hereby enacts as follows:
     9  Section 1.  Short title.
    10     This act shall be known and may be cited as the Noncoal
    11  Surface Mining Conservation and Reclamation Act.
    12  Section 2.  Purpose of act.
    13     This act shall be deemed to be an exercise of the police
    14  powers of the Commonwealth for the general welfare of the people
    15  of this Commonwealth, to provide for the conservation and
    16  improvement of areas of land affected in the surface mining of
    17  noncoal minerals, to aid in the protection of birds and
    18  wildlife, to enhance the value of the land for taxation, to
    19  decrease soil erosion, to aid in the prevention of the pollution
    20  of rivers and streams, to prevent and eliminate hazards to
    21  health and safety and generally to improve the use and enjoyment
    22  of the lands.
    23  Section 3.  Definitions.
    24     The following words and phrases when used in this act shall
    25  have the meanings given to them in this section unless the
    26  context clearly indicates otherwise:
    27     "Abandoned."  An operation where no mineral has been produced
    28  or overburden removed for a period of six months, verified by
    29  monthly reports submitted to the department by the operator and
    30  by inspections made by the department, unless:
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     1         (1)  an operator, within 30 days after receipt of
     2     notification by the secretary terming an operation abandoned,
     3     submits sufficient evidence to the secretary that there is a
     4     reasonable likelihood that additional materials will be
     5     extracted from the permit area in the future; and
     6         (2)  there is sufficient bond to provide for reclamation.
     7     "Active operation."  One in which the surface mine operator
     8  removes a minimum of 500 tons per acre of minerals for
     9  commercial purposes in a calendar year.
    10     "Cash."  Includes, when used in regard to bond requirements,
    11  negotiable certificates of deposit.
    12     "Contouring."  Reclamation achieved by beginning at or beyond
    13  the top of the highwall and sloped to the toe of the spoil bank
    14  at a maximum angle not to exceed the approximate original
    15  contour of the land, with no depressions to accumulate water and
    16  with adequate provisions for drainage.
    17     "Degree."  The inclination from the horizontal in each case
    18  subject to a tolerance of five degrees.
    19     "Department."  The Department of Environmental Resources.
    20     "Fund."  The Noncoal Surface Mining Conservation and
    21  Reclamation Fund.
    22     "Land."  The surface of the land upon which surface mining is
    23  conducted.
    24     "Landowner."  The person or municipality in whom the legal
    25  title to the land is vested.
    26     "Lease."  All documents which transfer or convey title to or
    27  rights in minerals in place, together with the right to remove
    28  the minerals. The term includes leases, mining leases, deeds of
    29  severance and deeds conveying title to or rights in minerals
    30  previously severed from the surface interest.
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     1     "Minerals."  Any aggregate or mass of mineral matter, whether
     2  or not coherent, which is extracted by surface mining. The term
     3  includes, but is not limited to, limestone and dolomite, sand
     4  and gravel, rock and stone, earth, fill, slag, iron ore, zinc
     5  ore, vermiculite and clay; but it does not include anthracite or
     6  bituminous coal.
     7     "Municipality."  Includes any county, city, borough, town,
     8  township, school district, institution or any authority created
     9  by any of the foregoing.
    10     "Operation."  The pit located upon a single tract of land or
    11  a continuous pit embracing or extending upon two or more
    12  contiguous tracts of land.
    13     "Operator."  A person engaged in surface mining as a
    14  principal as distinguished from an agent or independent
    15  contractor. Where more than one person is engaged in surface
    16  mining activities in a single operation, they shall be deemed
    17  jointly and severally responsible for compliance with the
    18  provisions of this act.
    19     "Overburden."  The strata or material overlying a mineral
    20  deposit or in between mineral deposits in its natural state
    21  before or after its removal by surface mining.
    22     "Person."  Any natural person, partnership, association,
    23  corporation or municipality or any agency, instrumentality or
    24  entity of Federal or State Government.
    25     "Pit."  The place where any minerals are being mined by
    26  surface mining.
    27     "Secretary."  The Secretary of Environmental Resources.
    28     "Spoil pile."  The overburden and reject minerals as piled or
    29  deposited in surface mining.
    30     "Surface mining."  The extraction of minerals from the earth,
    19830H1176B1364                  - 4 -

     1  from waste or stockpiles, from pits or from banks by removing
     2  the strata or material which overlies or is above or between
     3  them or otherwise exposing and retrieving them from the surface.
     4  The term includes, but is not limited to, strip and auger
     5  mining, dredging, quarrying and leaching and activities related
     6  thereto; but it does not include those mining operations carried
     7  out beneath the surface by means of shafts, tunnels or other
     8  underground mine openings. In operations where the extraction of
     9  coal is incidental to the extraction of minerals and where the
    10  coal extracted does not exceed 16 2/3% of the tonnage of
    11  materials removed for purposes of commercial use or sale, such
    12  activities shall be "surface mining" subject to this act and
    13  shall not be subject to the act of May 31, 1945 (P.L.1198,
    14  No.418), known as the Surface Mining Conservation and
    15  Reclamation Act. The term does not include:
    16         (1)  The extraction of minerals by a landowner for his
    17     own noncommercial use from land owned or leased by him.
    18         (2)  The extraction of sand, gravel, rock, stone, earth
    19     or fill from borrow pits from highway construction purposes
    20     if the work is performed under a bond, contract and
    21     specifications which substantially provide for and require
    22     reclamation of the area affected in the manner provided by
    23     this act.
    24         (3)  The handling, processing or storage of slag on the
    25     premises of a manufacturer as a part of the manufacturing
    26     process.
    27         (4)  Those mining operations carried out by dredging in
    28     navigable waters.
    29     "Terracing."  Grading where the steepest contour of the
    30  highwall is not greater than 35 degrees from the horizontal,
    19830H1176B1364                  - 5 -

     1  with the table portion of the restored area a flat terrace
     2  without depressions to hold water and with adequate provision
     3  for drainage, unless otherwise approved by the department.
     4     "Tract."  A single parcel of land or two or more contiguous
     5  parcels of land with common ownership or control.
     6  Section 4.  Operator's license.
     7     (a)  General rule.--No person shall conduct an active
     8  operation within this Commonwealth as an operator without first
     9  obtaining a surface mining operator's license from the
    10  department. Applications for a surface mining operator's license
    11  shall be made in writing to the department upon forms prepared
    12  and furnished by the department and shall contain such
    13  information as the department shall require about the applicant
    14  and, when the applicant is a corporation, partnership or
    15  association, about its officers, directors and principal owners.
    16  The initial application for a license shall be accompanied by a
    17  fee of $50 in the case of persons mining 2,000 tons or less of
    18  marketable minerals per year and a fee of $500 in the case of
    19  persons mining more than 2,000 tons of marketable minerals per
    20  year. All persons having a surface mining operator's license
    21  shall renew such license annually and shall pay for each license
    22  renewal a fee of $50 in the case of persons mining 2,000 tons or
    23  less of marketable minerals per year and a fee of $300 in the
    24  case of all other persons. The application for renewal of a
    25  surface mining operator's license shall be made annually on or
    26  before January 1 of the next succeeding year. Any person who
    27  conducts an active operation as an operator without having
    28  applied for and received a license as provided in this section
    29  or in violation of the terms of his license commits a
    30  misdemeanor and shall, upon conviction, be sentenced to pay a
    19830H1176B1364                  - 6 -

     1  fine of not less than $5,000 or an amount not less than the
     2  total profits derived by him as a result of his unlawful
     3  activities, as determined by the court, together with the
     4  estimated cost to the Commonwealth of any reclamation work which
     5  may reasonably be required to restore the land to its condition
     6  prior to the commencement of the offense or to undergo
     7  imprisonment not more than one year, or both. The fine shall be
     8  payable to the Noncoal Surface Mining Conservation and
     9  Reclamation Fund.
    10     (b)  Nonissuance, nonrenewal.--The department shall not issue
    11  any new surface mining operator's license or renew any existing
    12  surface mining operator's license if it finds, after
    13  investigation and an opportunity for an informal hearing, that
    14  the applicant has failed and continues to fail to comply with
    15  this act or any of the acts repealed or amended by this act
    16  insofar as the acts relate to noncoal surface mining. Where the
    17  applicant is a corporation, partnership or association, the
    18  department shall not issue such license or renewal if, after
    19  investigation and an opportunity for an informal hearing, it
    20  finds any of the following:
    21         (1)  Any officer, director or principal owner of the
    22     applicant has failed and continues to fail to comply with
    23     this act or any other acts insofar as they relate to noncoal
    24     surface mining or that any officer, director or principal
    25     owner of the applicant is or has been an officer, director or
    26     principal owner of any other corporation, partnership or
    27     association which has failed and continues to fail to comply
    28     with this act or other acts insofar as they relate to noncoal
    29     surface mining. However, the department shall issue such
    30     license or renewal if the applicant demonstrates that the
    19830H1176B1364                  - 7 -

     1     noncompliance is being corrected to the satisfaction of the
     2     department.
     3     (c)  Insurance.--The application for license or renewal shall
     4  be accompanied by a certificate of insurance certifying that the
     5  applicant has in force a public liability insurance policy
     6  issued by an insurance company authorized to do business in this
     7  Commonwealth covering all surface mining operations of the
     8  applicant in this Commonwealth and affording personal injury and
     9  property damage protection, to be written for the term of the
    10  license or renewal. The total amount of insurance shall be not
    11  less than $100,000. The secretary may waive this subsection upon
    12  a finding that the applicant is possessed and will continue to
    13  be possessed of ability to pay personal injury or property
    14  damage claims within the requirements of this subsection.
    15  Section 5.  Specifications for construction projects.
    16     It shall be the duty of architects, engineers or other
    17  persons preparing specifications for construction projects,
    18  which specifications include the requirement that the
    19  construction contractor supply fill for such project, to include
    20  within the specifications a specific reference to this act and
    21  the regulations pertaining to this act adopted by the
    22  department. If such a reference is omitted from the
    23  specifications and reclamation and planting of the land from
    24  which the fill was removed by the construction contractor is
    25  required under this act, any contract based on such
    26  specifications may be amended, at the option of the construction
    27  contractor, to allow a reasonable price for the reclamation and
    28  planting of the land affected in accordance with a plan
    29  acceptable to the secretary.
    30  Section 6.  Mining permit; reclamation plan; bond.
    19830H1176B1364                  - 8 -

     1     (a)  Application.--Before any licensed surface mining
     2  operator begins a surface mining operation, he shall apply to
     3  the department on a form prepared and furnished by the
     4  department for a permit for each separate operation, which
     5  permit when issued shall be valid until such operation is
     6  completed or abandoned unless sooner suspended by the secretary.
     7  As a part of each application for a permit, the operator shall
     8  furnish the following unless modified or waived by the
     9  department for cause:
    10         (1)  An accurately surveyed map or plan, in duplicate, on
    11     a scale of not less than 200 feet to the inch, in a manner
    12     satisfactory to the department, showing the location of the
    13     tract or tracts of land to be affected by the operation
    14     contemplated and cross sections at such intervals as the
    15     department may prescribe. Such surveyed map or plan and cross
    16     sections shall be certified by a registered professional
    17     engineer and a registered professional land surveyor and
    18     shall show the boundaries of the proposed land affected,
    19     together with the drainage area above and below such area;
    20     the location and names of all streams, roads, railroads and
    21     utility lines on or immediately adjacent to the area; the
    22     location of all buildings within 1,000 feet of the outer
    23     perimeter of the area affected; the names and addresses of
    24     the owners and present occupants thereof; the purpose for
    25     which each building is used; the name of the owner of the
    26     affected area and the names of adjacent landowners; the
    27     municipality or township and county and, if in a township,
    28     the nearest municipality. Such map or plan shall also show
    29     the results of test borings which the operator has conducted
    30     at the site of the proposed operation and shall include the
    19830H1176B1364                  - 9 -

     1     nature and depth of the various strata, the thickness of any
     2     mineral seam, such analyses of the mineral or overburden as
     3     the department may require, the crop line of any minerals to
     4     be mined and the location of test boring holes. The
     5     information resulting from test borings shall be deemed
     6     confidential information and shall not be deemed a matter of
     7     public record. Aerial photographs of the tract or tracts of
     8     land to be affected by the operation shall also be provided
     9     if such photographs are required by the department.
    10         (2)  A complete and detailed plan for the reclamation of
    11     the land affected. Except as otherwise provided in this act
    12     or unless a variance for cause is specially allowed by the
    13     department as provided in this act, each such plan shall
    14     include the following:
    15             (i)  A statement of the uses of the land proposed to
    16         be mined.
    17             (ii)  The use which is proposed to be made of the
    18         land following reclamation.
    19             (iii)  Where conditions permit, the manner in which
    20         topsoil and subsoil will be conserved and restored. If
    21         conditions do not permit the conservation and restoration
    22         of all or part of the topsoil and subsoil, a full
    23         explanation of those conditions shall be given and
    24         alternate procedures proposed.
    25             (iv)  Where the proposed land use so requires, the
    26         manner in which compaction of the soil and fill will be
    27         accomplished.
    28             (v)  A complete planting program providing for the
    29         planting of trees, grasses, legumes or shrubs or a
    30         combination thereof approved by the department as best
    19830H1176B1364                 - 10 -

     1         calculated to permanently restore vegetation to the land
     2         affected. If conditions do not permit the planting of
     3         vegetation on all or part of the land affected and if
     4         such conditions pose an actual or potential threat of
     5         soil erosion or unavoidable siltation, alternate
     6         procedures shall be proposed to prevent the threat of
     7         soil erosion or unavoidable siltation. If such procedures
     8         do not prevent these conditions, they shall not be
     9         approved by the department.
    10             (vi)  A detailed timetable for the accomplishment of
    11         each major step in the reclamation plan and the
    12         operator's estimate of the cost of each such step and the
    13         total cost to the operator of the reclamation program.
    14             (vii)  A full explanation of the conditions which do
    15         not permit contouring if the reclamation plan does not
    16         provide for contouring. Other alternatives to contouring
    17         or terracing may be proposed, in conjunction with such
    18         proposed land uses as water impoundment, water-oriented
    19         real estate development, recreational area development,
    20         industrial site development or solid waste disposal area
    21         development; and, unless such proposed alternatives or
    22         uses pose an actual or potential threat of water
    23         pollution, are deemed impractical or unreasonable,
    24         involve unreasonable delay in their implementation, or
    25         are violative of Federal, State or local law, such
    26         alternatives and uses shall be approved by the
    27         department.
    28             (viii)  The written consent of the landowner, upon a
    29         form prepared and furnished by the department, to entry
    30         upon any land to be affected by the operation by the
    19830H1176B1364                 - 11 -

     1         operator or by the Commonwealth or any of its authorized
     2         agents within a period of five years after the operation
     3         is completed or abandoned for the purpose of reclamation,
     4         planting and inspection or for the construction of any
     5         such mine drainage treatment facilities as may be deemed
     6         necessary by the secretary for the prevention of stream
     7         pollution from mine drainage. However, written consent of
     8         the landowner shall not be required in the case of leases
     9         in existence on November 30, 1971 or mineral interests
    10         first severed from the surface interests by conveyance
    11         prior to November 30, 1971 which do not provide for or
    12         require such consents.
    13             (ix)  The manner in which the operator plans to
    14         control surface water drainage. No approval shall be
    15         granted unless the plan provides for a practicable method
    16         of avoiding acid mine drainage and preventing avoidable
    17         siltation or other stream pollution.
    18     (b)  Decision.--Within 30 days after receipt of an
    19  application for a permit, the department shall examine the
    20  application, notify the applicant of specific deficiencies,
    21  request any additional information the department is authorized
    22  by law to require and, if the department objects to any part of
    23  the proposal, notify the applicant of its objections and the
    24  reasons therefor. Failure to correct a deficiency, to supply
    25  additional information or to remove the objections shall not be
    26  grounds for denial of the permit unless the department timely
    27  notified the applicant within this 30-day period. The department
    28  shall grant or deny the permit within 60 days after receipt of
    29  the application or receipt of the timely requested correction of
    30  deficiencies, additional information or removal of objections
    19830H1176B1364                 - 12 -

     1  unless the applicant agrees to an extension of this 60-day
     2  period. Any application that is not approved or denied within
     3  this 60-day period shall be deemed approved and the permit shall
     4  be issued. Should any applicant be aggrieved by any action of
     5  the department under this subsection or by the failure of the
     6  department to act upon his application for a permit, he may
     7  proceed to lodge an appeal with the Environmental Hearing Board
     8  in the manner provided by statute; and the applicant may appeal
     9  from the adjudication of the board as provided by Title 2 of the
    10  Pennsylvania Consolidated Statutes (relating to administrative
    11  law and procedure).
    12     (c)  Additional land.--The operator shall, prior to
    13  commencing operations on any additional land exceeding the
    14  estimate made in the application for a permit, file an
    15  additional application and bond. Upon receipt of such additional
    16  application and related documents and information as would have
    17  been required for the additional land had it been included in
    18  the original application for a permit and, if all the
    19  requirements of this act as were necessary to secure the permit
    20  are met, the department shall promptly issue an amended permit
    21  covering the additional acreage covered by such application and
    22  shall determine the additional bond requirement therefor.
    23     (d)  Bond.--
    24         (1)  Prior to commencing surface mining, the permittee
    25     shall file with the department a bond for the land affected
    26     by each operation on a form to be prescribed and furnished by
    27     the department, payable to the Commonwealth and conditioned
    28     that the permittee shall faithfully perform all of the
    29     requirements of this act and of the act of June 22, 1937
    30     (P.L.1987, No.394), known as The Clean Streams Law, the act
    19830H1176B1364                 - 13 -

     1     of January 8, 1960 (1959 P.L.2119, No.787), known as the Air
     2     Pollution Control Act, and, where applicable, the act of
     3     November 26, 1978 (P.L.1375, No.325), known as the Dam Safety
     4     and Encroachments Act, and the act of July 7, 1980 (P.L.380,
     5     No.97), known as the Solid Waste Management Act.
     6         (2)  An operator posting a bond sufficient to comply with
     7     this section shall not be required to post a separate bond
     8     for the permitted area under each of the acts hereinabove
     9     enumerated. This paragraph shall not prohibit the department
    10     from requiring additional bond amounts for the permitted area
    11     should such an increase be determined by the department to be
    12     necessary to meet the requirements of this act.
    13         (3)  The amount of the bond required shall be in an
    14     amount determined by the department based upon the total
    15     estimated cost of the Commonwealth of completing the approved
    16     reclamation plan or in such other amount and form as may be
    17     established by the department under regulations for an
    18     alternate bonding program which shall achieve the objectives
    19     and purposes of the bonding program. The estimate shall be
    20     based upon the permittee's statement of his estimated cost of
    21     fulfilling the plan during the course of his operation,
    22     inspection of the application and other documents submitted,
    23     inspection of the land area and such other criteria as may be
    24     relevant, including but not limited to the probable
    25     difficulty of reclamation giving consideration to such
    26     factors as topography, geology of the site, hydrology, the
    27     proposed land use, and the additional cost to the
    28     Commonwealth which may be entailed by being required to bring
    29     personnel and equipment to the site after abandonment by the
    30     permittee in excess of the cost to the permittee of
    19830H1176B1364                 - 14 -

     1     performing the necessary work during the course of his
     2     surface mining operations. When the plan involves the
     3     reconstruction or relocation of any public road or highway,
     4     the amount of the bond shall include an amount sufficient to
     5     fully build or restore the road or highway to a condition
     6     approved by the Department of Transportation. No bond shall
     7     be filed for less than $10,000 for the entire permit area.
     8     Liability under such bond shall be for the duration of the
     9     surface mining at each operation and for a period of five
    10     years after the last year of augmented seeding and
    11     fertilizing and any other work to complete reclamation to
    12     meet the requirements of law and protect the environment,
    13     unless released in part prior thereto as provided in this
    14     act.
    15         (4)  The bond shall be executed by the operator and a
    16     corporate surety licensed to do business in this Commonwealth
    17     and approved by the secretary. The permittee may elect to
    18     deposit with the department, in lieu of a corporate surety,
    19     cash, automatically renewable irrevocable bank letters of
    20     credit, which may be terminated by the bank at the end of a
    21     term only upon the bank giving 90 days prior written notice
    22     to the permittee and the department, or negotiable bonds of
    23     the United States Government or of the Commonwealth, the
    24     Pennsylvania Turnpike Commission, The General State
    25     Authority, the State Public School Building Authority or any
    26     municipality within this Commonwealth. The cash deposit
    27     amount of such irrevocable letter of credit or market value
    28     of such securities shall be equal at least to the sum of the
    29     bond. The secretary shall, upon receipt of any such deposit
    30     of cash, letters of credit or negotiable bonds, immediately
    19830H1176B1364                 - 15 -

     1     place the same with the State Treasurer, whose duty it shall
     2     be to receive and hold the deposit in the name of the
     3     Commonwealth, in trust, for the purposes for which the
     4     deposit is made. The State Treasurer shall at all times be
     5     responsible for the custody and safekeeping of such deposits.
     6     The permittee making the deposit shall be entitled from time
     7     to time to demand and receive from the State Treasurer, on
     8     the written order of the secretary, the whole or any portion
     9     of any collateral so deposited upon depositing with the State
    10     Treasurer, in lieu thereof, other collateral of the classes
    11     specified in this paragraph having a market value at least
    12     equal to the sum of the bond or to substitute a bond for such
    13     cash, automatically renewable irrevocable bank letters of
    14     credit or negotiable bonds and also to demand, receive and
    15     recover the interest and income from the negotiable bonds as
    16     it becomes due and payable. Where negotiable bonds,
    17     deposited, mature or are called, the State Treasurer, at the
    18     request of the permittee, shall convert the negotiable bonds
    19     into such other negotiable bonds of the classes specified in
    20     this paragraph as may be designated by the permittee. Where
    21     notice of intent to terminate a letter of credit is given,
    22     the department shall give the permittee 30 days' written
    23     notice to replace the letter of credit with other acceptable
    24     bond guarantees as provided in this paragraph and, if the
    25     permittee fails to replace the letter of credit within the
    26     30-day notification period, the department shall draw upon
    27     and convert such letter of credit into cash and hold it as a
    28     collateral bond guarantee or may accept a self-bond from the
    29     permittee, without separate surety if the permittee
    30     demonstrates to the satisfaction of the department a history
    19830H1176B1364                 - 16 -

     1     of financial solvency, continuous business operation and
     2     continuous efforts to achieve compliance with all Federal and
     3     Pennsylvania environmental statutes, pledges such real or
     4     personal property as the department may require to secure the
     5     self-bond and complies with such other requirements as the
     6     department may reasonably require.
     7     (e)  Excessive mining.--Notwithstanding subsection (d), in
     8  the case of applications for the mining of minerals where the
     9  department determines that the mineral to be extracted exceeds
    10  the amount of overburden by a ratio of at least four to one or
    11  the minerals are to be removed by underground mining methods and
    12  where the mining operations are reasonably anticipated to
    13  continue for a period of at least ten years from the date of
    14  application, the term of the bond shall be for the duration of
    15  the mining and reclamation operations and for five years
    16  thereafter. The operator, in the case of mining and reclamation
    17  operations mentioned in this subsection, may elect to deposit
    18  collateral and file a collateral bond as provided in subsection
    19  (d) according to the following phased deposit schedule. The
    20  operator shall, prior to commencing mining operations, deposit
    21  $10,000 or 25% of the amount of the bond determined under
    22  subsection (d), whichever is greater. The operator shall,
    23  thereafter, annually deposit 10% of the remaining bond amount
    24  for a period of ten years. Interest accumulated by such
    25  collateral shall become a part of the bond until such time as
    26  the collateral, plus accumulated interest, equal the amount of
    27  the required bond. The department may require additional bonding
    28  at any time to meet the intent of subsection (d). The collateral
    29  shall be deposited, in trust, with the State Treasurer as
    30  provided in subsection (d) or with a bank selected by the
    19830H1176B1364                 - 17 -

     1  department which shall act as trustee for the benefit of the
     2  Commonwealth, according to the regulations promulgated under
     3  this act, to guarantee the operator's compliance with this act
     4  and the statutes enumerated in subsection (d)(1). The operator
     5  shall be required to pay all costs of the trust. The collateral
     6  deposit or part thereof shall be released of liability and
     7  returned to the operator, together with a proportional share of
     8  accumulated interest, upon the conditions of and under the
     9  schedule and criteria for release provided in subsection (g).
    10     (f)  Progress report.--Within 90 days after commencement of
    11  surface mining operations and each 365 days thereafter unless
    12  modified or waived by the department for cause, the operator
    13  shall file in triplicate an operations and progress report with
    14  the department on a form prescribed and furnished by the
    15  department, setting forth:
    16         (1)  The name or number of the operation.
    17         (2)  The location of the operation as to county and
    18     township and with reference to the nearest public road.
    19         (3)  A description of the tract or tracts.
    20         (4)  The name and address of the landowner or his duly
    21     authorized representative.
    22         (5)  An annual report of the mineral produced, number of
    23     employees and days worked.
    24         (6)  A report of all fatal and nonfatal accidents for the
    25     previous year.
    26         (7)  The current status of the reclamation work performed
    27     in pursuance of the approved reclamation plan.
    28         (8)  Such other or further information as the department
    29     may reasonably require.
    30     (g)  Release of liability.--As the operator completes each
    19830H1176B1364                 - 18 -

     1  separate step of the approved reclamation plan, the operator may
     2  report the completion to the department and request the release
     3  of that portion of the bond and collateral which relates to the
     4  completed portion of the reclamation plan. Upon the receipt of
     5  such notification and request, the department shall inspect the
     6  premises; and, if it finds that the work has been performed in a
     7  proper and workmanlike manner and is in compliance with the
     8  approved reclamation plan and with law, it shall release that
     9  portion of the bond and collateral which relates to the
    10  completed portion of the reclamation plan. The department may
    11  withhold an amount equivalent to 5% of the amount for a period
    12  of five years from the completion date of the work, as a
    13  contingency allowance for the reimbursement of the Commonwealth
    14  of any cost encountered due to after-discovered faulty or
    15  negligent work on the part of the operator. Upon release of all
    16  or part of the bond and collateral as provided in this
    17  subsection, the State Treasurer shall immediately return to the
    18  operator the amount of cash or securities specified therein.
    19     (h)  Forfeiture.--If the operator fails or refuses to comply
    20  with the requirements of this act in any respect for which
    21  liability has been charged on the bond, the department shall
    22  declare such portion of the bond forfeited and shall certify
    23  this to the Office of the Attorney General, which shall proceed
    24  to enforce and collect the amount of liability forfeited
    25  thereon; and where the operator has deposited cash or securities
    26  as collateral in lieu of a corporate surety, the department
    27  shall declare the portion of the collateral forfeited and shall
    28  direct the State Treasurer to pay the funds into the Noncoal
    29  Surface Mining Conservation and Reclamation Fund or to proceed
    30  to sell said securities to the extent forfeited and pay the
    19830H1176B1364                 - 19 -

     1  proceeds thereof into the Noncoal Surface Mining Conservation
     2  and Reclamation Fund. Should any corporate surety fail to
     3  promptly pay in full a forfeited bond, it shall be disqualified
     4  from writing any further surety bonds under this act. Any
     5  operator aggrieved by reason of forfeiting the bond or
     6  converting collateral, as provided in this subsection, shall
     7  have a right to contest such action and appeal therefrom as
     8  provided in subsection (i).
     9     (i)  Appeal.--Should any operator be aggrieved by any
    10  decision or action of the secretary with respect to the amount
    11  of any bond, the terms, conditions or release thereof or any
    12  other matter related thereto, he may proceed to lodge an appeal
    13  with the Environmental Hearing Board in the manner provided by
    14  law; and from the adjudication of the board the operator may
    15  further appeal as provided by Title 2 of the Pennsylvania
    16  Consolidated Statutes (relating to administrative law and
    17  procedure).
    18     (j)  Minimal impact.--Notwithstanding the provisions of
    19  subsections (d) and (e) and section 4(c), in the case of
    20  applications for the surface mining permits and licenses, where
    21  the department determines that the amount of marketable minerals
    22  to be extracted does not exceed 2,000 tons, no certificate of
    23  insurance nor bond shall be required.
    24  Section 7.  Public health and safety.
    25     (a)  Jurisdiction.--Except as otherwise provided in this act,
    26  all surface mining operations coming within the provisions of
    27  this act shall be under the exclusive jurisdiction of the
    28  department and shall be conducted in compliance with such
    29  reasonable rules and regulations as may be deemed necessary by
    30  the secretary for the protection of the general public. Separate
    19830H1176B1364                 - 20 -

     1  rules and regulations shall be promulgated for each mineral. The
     2  secretary, through the mine conservation inspectors, shall have
     3  the authority and power to enforce this act and the rules and
     4  regulations promulgated hereunder. In addition, should the
     5  secretary determine that a condition caused by or related to
     6  surface mining constitutes a hazard to public health or safety,
     7  the secretary shall take such measures to abate and remove the
     8  same as are provided by section 1917-A of the act of April 9,
     9  1929 (P.L.177, No.175), known as The Administrative Code of
    10  1929, and as otherwise provided by law for the abatement of
    11  nuisances. For the purposes of this section, any condition which
    12  creates a risk of fire, landslide, subsidence, cave-in or other
    13  unsafe, dangerous or hazardous condition including, but not
    14  limited to, any unguarded and unfenced open pit area, highwall,
    15  water pool, spoil bank, abandoned structure, equipment,
    16  machinery, tools and other property used in or resulting from
    17  surface mining operations or other serious hazards to public
    18  health or safety, are hereby declared to be a nuisance within
    19  the meaning of section 1917-A of The Administrative Code of
    20  1929.
    21     (b)  Explosives.--The use of explosives for the purpose of
    22  blasting in connection with surface mining shall be done in
    23  accordance with regulations promulgated by and under the
    24  supervision of the secretary. It shall be unlawful for any
    25  blaster to leave a working place after a task completion without
    26  first filing a blaster's report with the mine operator. Such
    27  report shall indicate the nature of the blasting operation,
    28  including, but not limited to, the type and amount of explosives
    29  used.
    30     (c)  Distance limitations.--No operator shall open any pit
    19830H1176B1364                 - 21 -

     1  for surface mining operations, other than borrow pits for
     2  highway construction purposes within 100 feet of the outside
     3  line of the right-of-way of any public highway; within 300 feet
     4  of any occupied dwelling house, unless released by the owner
     5  thereof; within 300 feet of any public building, school, public
     6  park or community or institutional building or within 100 feet
     7  of any cemetery. The secretary may grant operators variances to
     8  the distance requirements established in this subsection where
     9  he is satisfied that special circumstances warrant such
    10  exceptions and that the interest of the public and landowners
    11  affected thereby will be adequately protected. Prior to granting
    12  any such variances, the operator shall be required to give
    13  public notice of his application therefor in two newspapers of
    14  general circulation in the area once a week for two successive
    15  weeks. Should any person file an exception to the proposed
    16  variance within 20 days of the last publication thereof, the
    17  department shall conduct a public hearing with respect thereto.
    18     (d)  Cleanup.--Upon the completion of any surface mining
    19  operation and prior to the release by the secretary of all or
    20  any portion of the bond or collateral pertinent thereto, the
    21  operator shall remove and clean up all temporary or unused
    22  structures, facilities, equipment, machines, tools, parts or
    23  other materials, property, debris or junk which were used in or
    24  resulted from the surface mining operations.
    25     (e)  Relocation of public roads.--Nothing contained in this
    26  act shall be construed to prohibit the relocation of any public
    27  road in the manner provided by law.
    28     (f)  Water restoration.--Any surface mining operator who
    29  affects a public or private water supply by contamination or
    30  diminution shall restore or replace the affected supply with an
    19830H1176B1364                 - 22 -

     1  alternate source of water adequate in quantity and quality for
     2  the purposes served by the supply. If any operator fails to
     3  comply with this subsection, the secretary may issue such orders
     4  to the operator as are necessary to assure compliance.
     5     (g)  Appeal.--Any operator aggrieved by the secretary's order
     6  issued under subsection (f) shall have the right within 30 days
     7  of receipt of such order to appeal to the Environmental Hearing
     8  Board. Hearings under this subsection and any subsequent appeal
     9  shall be in accordance with section 1921-A of The Administrative
    10  Code of 1929 and Title 2 of the Pennsylvania Consolidated
    11  Statutes (relating to administrative law and procedure).
    12     (h)  Cost of water restoration.--If the secretary finds that
    13  immediate replacement of an affected water supply used for
    14  potable or domestic needs is required to protect health and
    15  safety and that the operator has appealed or failed to comply
    16  with an order issued under subsection (f), the secretary may, in
    17  his discretion, restore or replace the affected water supply
    18  with an alternate source of water utilizing moneys from the
    19  Noncoal Surface Mining Conservation and Reclamation Fund. Should
    20  the secretary's decision be upheld on appeal, the secretary
    21  shall proceed to recover the costs of restoration or
    22  replacement, including costs incurred for design and
    23  construction of facilities, from the responsible operator or
    24  operators. Any such costs recovered shall be deposited in the
    25  fund.
    26  Section 8.  Violation notices; suspension of license; cease and
    27                 desist orders.
    28     Any mine conservation inspector shall have the right to enter
    29  upon and inspect all surface mining operations for the purpose
    30  of determining conditions of public health and safety and
    19830H1176B1364                 - 23 -

     1  compliance with this act and all rules and regulations
     2  promulgated under this act. Should an operator fail to comply
     3  with this act or any rules or regulations promulgated under this
     4  act, the mine conservation inspector shall report the matter to
     5  the secretary who shall immediately notify the operator by
     6  registered mail of such failure. Unless the operator complies
     7  with that act and the rules and regulations within 30 days from
     8  the receipt of such notice, the secretary may, after hearing and
     9  final determination, suspend the surface mining operator's
    10  license of the operator and issue a cease and desist order
    11  requiring the operator to immediately cease surface mining
    12  within this Commonwealth until such time as it is determined by
    13  the secretary that the operator is in compliance. A mine
    14  conservation inspector shall have the authority to order the
    15  immediate stopping of any operation that is started by an
    16  unlicensed operator, that is started without the operator hereof
    17  having first obtained a permit as required by this act, or in
    18  any case where the public health or safety calls for the
    19  immediate halt of the operation, until corrective steps have
    20  been started by the operator to the satisfaction of the mine
    21  conservation inspector. Any operator who believes he is
    22  aggrieved by the action of the mine conservation inspector may
    23  immediately appeal to the secretary, setting forth reasons why
    24  his operation should not be halted. The secretary shall
    25  determine when the operation shall continue.
    26  Section 9.  Mine conservation inspectors.
    27     Mine conservation inspectors shall be appointed in accordance
    28  with 4 Pa. Code Part IV (relating to Civil Service Commission).
    29  It shall be the duty of the secretary to assign the inspectors
    30  to their respective areas of jurisdiction.
    19830H1176B1364                 - 24 -

     1  Section 10.  Local ordinances.
     2     The Commonwealth by this enactment hereby preempts the
     3  regulation of surface mining as herein defined. Except with
     4  respect to regulating uses of land, water courses and other
     5  bodies of water pursuant to section 603(1) of the act of July
     6  31, 1968 (P.L.805, No.247), known as the Pennsylvania
     7  Municipalities Planning Code, all local ordinances and
     8  enactments purporting to regulate surface mining are hereby
     9  superseded.
    10  Section 11.  Noncoal Surface Mining Conservation and Reclamation
    11                 Fund.
    12     (a)  Creation of fund.--All funds received by the secretary
    13  from license fees, permit fees, forfeiture of bonds, cash
    14  deposits and securities, and costs recovered under the act of
    15  June 22, 1937 (P.L.1987, No.394), known as The Clean Streams
    16  Law, shall be held by the State Treasurer in a special fund,
    17  separate and apart from all other moneys in the State Treasury,
    18  to be known as the Noncoal Surface Mining Conservation and
    19  Reclamation Fund, and shall be used by the secretary for the
    20  purpose of the revegetation or reclaiming of land affected by
    21  surface mining of any minerals, for restoration or replacement
    22  of water supplies affected by surface mining operations, or for
    23  any other conservation purposes provided by this act and for
    24  such purposes are specifically appropriated to the department by
    25  this act.
    26     (b)  Earmarked funds.--Funds received from the forfeiture of
    27  bonds, both surety and collateral, shall be expended by the
    28  secretary for reclaiming and planting the area of land affected
    29  by the operation upon which liability was charged on the bond if
    30  the secretary determines such expenditure to be reasonable,
    19830H1176B1364                 - 25 -

     1  necessary and physically possible. Any funds received from such
     2  forfeited bonds in excess of the amount which is required to
     3  reclaim and plant the area of land affected by the operation
     4  upon which liability was charged and funds received from bond
     5  forfeitures where reclamation and planting is determined to be
     6  unreasonable, unnecessary or physically impossible may be used
     7  by the secretary for any of the purposes provided in subsection
     8  (a).
     9  Section 12.  Release of operator on transfer of operation.
    10     Where one operator succeeds another at any uncompleted
    11  operation, by sale, assignment, lease or otherwise, the
    12  secretary may release the first operator from all liability
    13  under this act as to that particular operation if both operators
    14  have registered and have otherwise complied with the
    15  requirements of this act and the successor operator assumes as
    16  part of his obligation under this act all liability for grading,
    17  planting and reclamation on the land affected by the former
    18  operator.
    19  Section 13.  Injunctive relief.
    20     In addition to any other remedy at law or in equity or under
    21  this act, the Attorney General may apply for relief by
    22  injunction, to enforce compliance with or to restrain violations
    23  of this act, or any rule, regulation, permit condition or order
    24  made under this act. The remedy prescribed in this section shall
    25  be deemed concurrent or contemporaneous with any other remedy
    26  and the existence or exercise of any one remedy shall not
    27  prevent the exercise of any other remedy.
    28  Section 14.  Remedies of citizens.
    29     Any citizen of this Commonwealth having knowledge that any of
    30  the provisions of this act are willfully and deliberately not
    19830H1176B1364                 - 26 -

     1  being enforced by any public officer or employee whose duty it
     2  is to enforce this act shall bring such failure to enforce the
     3  law to the attention of the public officer or employee. To
     4  provide against unreasonable and irresponsible demands being
     5  made, all demands to enforce the law must be in writing, under
     6  oath, with facts set forth specifically stating the nature of
     7  the failure to enforce the law. The stating of false facts and
     8  charges in such affidavit shall constitute perjury and shall
     9  subject the affiant to penalties prescribed under the law for
    10  perjury. If the public officer or employee neglects or refuses
    11  for an unreasonable time after demand to enforce such provision,
    12  the citizen shall have the right to bring an action of mandamus
    13  in the court of common pleas of the county in which the
    14  operation which relates to the alleged lack of enforcement is
    15  being conducted. The court, if satisfied that any provision of
    16  this act is not being enforced, may make an appropriate order
    17  compelling the public officer or employee whose duty it is to
    18  enforce such provision to perform his duties and, upon failure
    19  to do so, the public officer or employee shall be held in
    20  contempt of court and shall be subject to the penalties provided
    21  by the laws of the Commonwealth in such cases.
    22  Section 15.  Existing licenses and permits.
    23     Any surface mining operator's license or surface mining
    24  permit existing on the effective date of this act shall remain
    25  in effect until the license or permit expires under its terms or
    26  is otherwise terminated under the provisions of this act.
    27  Section 16.  Repeals.
    28     All acts and parts of acts are repealed insofar as they are
    29  inconsistent with this act.
    30  Section 17.  Effective date.
    19830H1176B1364                 - 27 -

     1     This act shall take effect in 60 days.




















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