(a)
Water supply surveys.
The operator or mine owner shall conduct a survey of the quantity and quality
of all water supplies within the permit area and those in adjacent areas that
may be affected by mining activities, except when the water supply owner denies
the operator or mine owner access for the survey.
(1) The survey must include the following
information to the extent that it can be collected without excessive
inconvenience to the water supply owner or water supply user:
(i) The location and type of water
supply.
(ii) The existing and
reasonably foreseeable uses of the water supply.
(iii) The chemical and physical
characteristics of the water, including, at a minimum, total dissolved solids
or specific conductance corrected to 25°C, pH, total iron, total manganese,
acidity, alkalinity and sulfates. Additional parameters, including hardness and
total coliform, may be required by the Department based on the local aquifer
conditions and the characteristics of the water supply and uses. An operator or
mine owner who obtains water samples in a premining or postmining survey shall
utilize a certified laboratory to analyze the samples. For water supplies with
existing treatment, the treatment system must be documented, and a chemical
analysis of the untreated water shall be obtained if a sample that bypasses the
treatment can feasibly be collected.
(iv) Historic and recent quantity
measurements and other hydrogeologic data such as the static water level and
yield determination.
(v) The
physical description of the water supply, including the depth and diameter of
the well, length of casing and description of the treatment and distribution
systems.
(vi) Sufficient sampling
and other measurements to document the seasonal variation in hydrologic
conditions of the water supply.
(2) The operator or mine owner shall submit
the results of all qualitative analyses and quantity measurements gathered as
part of a water supply survey to the Department and supply a copy to the water
supply owner and water supply user prior to the issuance of a mining
permit.
(3) A water supply survey
shall be conducted prior to the time a water supply is susceptible to
mining-related effects and shall be made part of the application for surface
mining permit submitted to the Department. An update to the original survey may
be required after permit issuance under the requirements of §
86.53 (relating to reporting of
new information).
(4) If the
operator or mine owner is prohibited from making a premining or postmining
survey because the water supply owner will not allow access to the site, the
operator or mine owner shall submit evidence to the Department of the
following:
(i) The operator or mine owner
notified the water supply owner by certified mail or personal service of the
water supply owner's rights and the effect on the water supply owner of the
water supply owner's denial to the operator or mine owner of access to the site
under section 4.2 of SMCRA (52 P.S. §
1396.4b).
(ii) The operator or mine owner attempted to
conduct a survey.
(iii) The water
supply owner failed to authorize access to the operator or mine owner to
conduct a survey prior to commencing mining activity.
(b)
Water supply
replacement obligations.
(1) The
operator or mine owner of any mine who affects a water supply to any
demonstrable extent by contamination, pollution, diminution or interruption
shall promptly restore or replace the affected water supply with a permanent
alternate supply adequate in water quantity and water quality for the purposes
served by, and the reasonably foreseeable uses of, the water supply. The
operator or mine owner shall provide to the Department, in writing, the
description of the location of a restored or replaced water supply and the name
and address of the water supply owner under the requirements of §
86.53.
(2) For any water supply
that will, with a reasonable degree of certainty established by supporting
evidence, be affected by contamination, pollution, diminution or interruption
by the proposed mining, the operator or mine owner shall provide a replacement
supply prior to commencing the activity.
(c)
Temporary water
supplies. If the affected water supply owner or water supply user
whose supply is in the area of presumption as defined in subsection (j)(1) is
without a readily available alternate source of water, the operator or mine
owner shall provide a temporary water supply within 24 hours of being contacted
by the water supply owner, water supply user or the Department, whichever
occurs first. The temporary water supply provided under this subsection shall
meet the quality requirements of subsection (f)(2) and provide sufficient
quantity to meet the water supply owner or water supply user's premining needs.
The requirement for a temporary water supply may be subject to a preliminary
determination by the Department.
(d)
Immediate replacement of water
supply by the Department.
(1) If the
Department finds that immediate replacement of an affected water supply used
for potable or domestic purposes is required to protect public health or safety
and the operator or mine owner has failed to comply with an order issued under
section
4.2(f) of SMCRA,
the Department may use moneys from the Surface Mining Conservation and
Reclamation Fund to restore or replace the affected water supply.
(2) The Department will recover the costs of
restoration or replacement, the costs of temporary water supply and costs
incurred for design and construction of facilities from the responsible
operator or mine owner. Costs recovered will be deposited in the Surface Mining
Conservation and Reclamation Fund.
(e)
Reimbursement. If a
water supply is restored or replaced by the water supply owner or water supply
user prior to establishing that mining activity is responsible for the
pollution or diminution, the responsible operator or mine owner shall reimburse
the water supply owner or water supply user the cost of replacing or restoring
the supply including payment of operation and maintenance costs as described in
subsection (g). If the operator or mine owner disputes the cost as presented by
the water supply owner or water supply user, the operator or mine owner may
present to the Department comparable estimates meeting the requirements of
subsection (b)(1) from three water supply installers in the area. The
Department will determine fair cost of reimbursement based upon these estimates
and any other applicable information. Without affecting a water supply owner's
or water supply user's other rights consistent with subsection (l), an affected
water supply owner or water supply user may make a reimbursement claim to the
Department against an operator or mine owner only until final release of the
reclamation bond for the site.
(f)
Adequacy of permanently restored or replaced water supply. A
permanently restored or replaced water supply shall include any well, spring,
municipal water supply system or other supply approved by the Department which
meets the following criteria for adequacy:
(1)
Reliability, maintenance and
control. As documented in the premining water supply survey, a
restored or replaced water supply, at a minimum, shall:
(i) Be as reliable as the previous water
supply.
(ii) Be as permanent as the
previous water supply.
(iii) Not
require excessive maintenance.
(iv)
Provide the water supply owner and the water supply user with as much control
and accessibility as exercised over the previous water supply.
(v) Not result in increased cost of operation
and maintenance for the water supply owner or water supply user, unless the
operator or mine owner has provided for payment of the increased cost as
described under subsection (g).
(2)
Quality. A restored or
replaced water supply will be deemed adequate in quality if it meets the
following:
(i) For a domestic supply, the
Pennsylvania Safe Drinking Water Act (35 P.S. §§
721.1-721.17) standards, or a quality
comparable to the premining water supply if that water supply did not meet
these standards. The Department may require that the quality of the restored or
replaced water supply be equivalent to the premining supply in particular
circumstances where the water supply owner or water supply user has
demonstrated that this standard is necessary for the purposes served by the
current supply.
(ii) For other than
a domestic supply, the premining quality established by the water supply survey
data or an adequate quality of water needed for the purposes served by and the
reasonably foreseeable uses of the supply.
(3)
Quantity. For purposes
of this paragraph the term "reasonably foreseeable uses" includes the
reasonable expansion of use where the quantity of the water supply available
prior to mining was adequate to supply the foreseeable uses. A restored or
replaced water supply will be deemed adequate in quantity if it meets one of
the following:
(i) It delivers the amount of
water necessary to satisfy the purposes served by the supply as documented in
the water supply survey including the demands of any reasonably foreseeable
uses. The Department will not accept the use of water storage systems in
conjunction with the replaced or restored supply to meet quantity requirements,
unless the operator or mine owner can demonstrate the existence of no
reasonable alternative.
(ii) It is
established through a connection to a public water supply system that is
capable of delivering the amount of water necessary to satisfy the water supply
owner's or water supply user's needs and the demands of any reasonably
foreseeable uses.
(4)
Water source serviceability. Replacement of a water supply
shall include the installation of all piping, pumping equipment and treatment
equipment necessary to put the replaced water source into
service.
(g)
Increased operation and maintenance costs. If the operation
and maintenance costs of the restored or replaced water supply are more than
those of the previous supply, the operator or mine owner shall provide for the
permanent payment of the increased operation and maintenance costs of the
restored or replaced water supply in accordance with the following procedure:
(1)
Determining costs. The
Department will determine the amount of the annual increase in operation and
maintenance costs of the restored or replaced water supply based on current
actual uses of the water supply.
(i) In
consultation with the water supply owner or water supply user, the operator or
mine owner shall use a minimum of 6 months of data, including high and low use
periods, to ascertain the cost of operating and maintaining the replacement
water supply. The data collection period should not exceed 1 year from the date
the replacement water supply is functional unless the Department determines a
reason to extend the period. During this collection period, the operator or
mine owner pays the operation and maintenance costs.
(ii) Within 30 days after the end of the data
collection period, the operator or mine owner shall submit to the Department,
and to the water supply owner by certified mail, the operator's or mine owner's
calculation of the annual increased operation and maintenance costs and a plan
for payment of these costs. The water supply owner may respond to the proposed
calculation of costs within 30 days from receipt of the certified
mail.
(iii) The Department will
review the operator's or mine owner's information, the water supply owner's
information and any other information the Department deems relevant and will
determine the amount of annual increase in operation and maintenance
costs.
(iv) In determining the
amount of annual increase in operation and maintenance costs, the Department
will take into account contingencies and the precision of the cost estimates.
(2)
Provisions
for payment. Within 60 days of the Department's determination of the
annual increased cost, the operator shall post a surety or collateral bond in
an amount calculated in accordance with paragraph (3). This bond is subject to
the following provisions:
(i) The bond shall
be submitted on a form prepared by the Department, separate from the designated
reclamation bond.
(ii) The bond
amount will be reviewed and adjusted as necessary and in accordance with §
86.152 (relating to bond
adjustments) at an interval no less than every 5 years in conjunction with the
permit renewal.
(iii) A replacement
bond must be posted by any successor operator of the associated
permit.
(iv) If a water supply
operation and maintenance costs bond is forfeited, money received from the
forfeiture of the bond can be used only for the water supply for which the
Department forfeited the bond unless this supply has since been abandoned. The
money will be paid by the Department to the current water supply owner as a
settlement of the water supply owner's claim for increased operation and
maintenance costs for the water supply for which the bond was forfeited. If a
permittee has posted a bond for multiple water supplies, the moneys will be
paid to the water supply owners on a prorated basis, based on the respective
operation and maintenance costs.
(3)
Bond calculation.
Calculation of the amount of bond necessary to assure payment of operation and
maintenance costs will be accomplished through the following procedure:
(i) The annual increased operation and
maintenance costs are determined as in paragraph (1).
(ii) This cost is then projected through 1
year beyond the term of the associated permit accounting for inflation through
this time period. The following formula is used to calculate the projected
costs.
Click to view image
Where:
OMx
is the
projected cost for operation and maintenance,
OM is the annual increased operation
and maintenance costs,
E is inflation rate based on the average Consumer Price
Index as a decimal,
x is years to renewal plus one.
(iii) The projected cost is
then used to calculate bond value that is necessary to assure payment of
operation and maintenance costs. This bond value can be established by using
the projected cost determined in subparagraph (ii) in the following formula:
Click to view image
Where:
Bond is the present value of the funds
needed to cover increased operation and maintenance costs in perpetuity,
i is the historic, long-term rate of
return on investments based on Treasury Bills as a decimal,
OM
x and E are
defined as in subparagraph (ii).
(iv) The Department will annually recalculate
values for the variables i and E used in the previous formulas and publish
these values in the Pennsylvania Bulletin.
(4)
Release of
obligation. A voluntary agreement between the water supply owner and
the operator or mine owner may be executed at any time. This agreement shall
include a notarized statement signed by the water supply owner that documents
the settlement of increased operation and maintenance costs to the satisfaction
of all parties. This agreement shall be on forms provided by the Department and
recorded with the deed to the property, with an original signed, recorded
document submitted to the Department upon completion. Upon receipt of the fully
executed and recorded release, the Department will consider the operator's or
mine owner's obligation to pay increased operation and maintenance costs for
the water supply to be satisfied and any bonds posted for this supply can be
released.
(h)
Special Provisions for operation and maintenance costs.
(1) Should ownership of the affected water
supply change, the operator or mine owner must continue to pay the increased
operation and maintenance costs unless a release outlined in subsection (g)(4)
is executed.
(2) An operator who
incurs the obligation to pay for increased operation and maintenance costs for
multiple water supplies may post one bond that covers the increased operation
and maintenance costs for multiple water supplies. The procedures for
calculating this bond amount shall be consistent with a single supply bond
value as described in subsection (g)(3) but the bond amount must be sufficient
to provide for the payment for each water supply in the event that the operator
defaults on the legal obligation of permanent payment.
(i)
Waivers.
(1) The requirement to restore or replace an
affected water supply may be waived by the Department if the Department
determines that the affected water supply is to be abandoned whereby a
replacement is no longer needed based on the approved post-mining land
use.
(2) If a water supply is to be
abandoned as in paragraph (1), a notarized written statement signed by all
persons who possess an ownership interest in the water supply shall be
submitted to the Department establishing that the individuals knowingly and
willingly agree to abandon the water supply. This document shall be recorded
with the deed to the property at the office of the recorder of deeds.
(j)
Presumption of
liability.
(1) It shall be presumed,
as a matter of law, that a surface mine operator or owner is responsible
without proof of fault, negligence or causation for all pollution and
diminution, except for bacteriological contamination, of public or private
water supplies within 1,000 linear feet (304.80 meters) of the boundaries of
any areas affected by surface mining activities whether or not permitted,
including all reclaimed areas that underwent these activities. Areas utilized
solely for haul and access roads shall not be included in the presumption
area.
(2) Other than if the
operator, mine owner or the Department determines that the water supply is not
within the 1,000-foot area as described in paragraph (1), the presumption is
voided if the operator or mine owner can affirmatively prove by a preponderance
of the evidence one or more of the following:
(i) The water supply owner refused to allow
the operator or mine owner access to conduct a water supply survey prior to
commencing surface mining activities.
(ii) The water supply owner or water supply
user refused to allow the operator or mine owner access to determine the cause
of pollution or diminution or to replace or restore the water supply.
(iii) The pollution or diminution existed
prior to the surface mining activities as evidenced by a water supply survey
conducted prior to commencing surface mining activities and as documented in
the approved surface mine permit application submitted to the Department prior
to permit issuance.
(iv) The
pollution or diminution is not a result of the surface mining
activities.
(3) If the
operator or mine owner intends to demonstrate the presumption of liability is
not applicable, they shall notify the Department and provide information in
support of the demonstration. If asserting that access was denied, evidence
must be provided showing that the water supply owner was notified by certified
mail or personal service that the refusal of access to conduct a water supply
survey or assessment may be used to rebut the presumption of liability. The
Department will consider information provided under this paragraph in
determining if mining activity caused the pollution or diminution and make a
determination within 90 days of the operator's or mine owner's
submissions.
(k)
Operator cost recovery. An operator or mine owner who prevails
in an appeal of a Department order to replace a water supply may pursue
recovery of costs in accordance with
27 Pa.C.S. §
7708
(relating to costs for mining proceedings).
(l)
Other remedies. Nothing
in this section prevents a water supply owner or water supply user who claims
pollution or diminution of a water supply from pursuing any other remedy that
may be provided for in law or in equity. This section also does not prevent an
operator or mine owner from pursuing any remedy in law or in equity should the
operator incur costs for restoring or replacing a water supply that experienced
pollution or diminution caused by third parties.
(m)
Issuance of new permits.
A Department order issued under this section which is appealed will not be used
to block issuance of new permits.
(n)
Department authority.
Nothing in this section limits the Department's authority under section
4.2(f)(l) of SMCRA.
(o)
Exception. A surface mining operation conducted under a
surface mining permit issued by the Department before February 16, 1993, is not
subject to subsections (a) and (c)-(m) but is subject to subsections (b) and
(n).