Pennsylvania Code & Bulletin
COMMONWEALTH OF PENNSYLVANIA

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The Pennsylvania Code website reflects the Pennsylvania Code changes effective through 50 Pa.B. 6186 (October 31, 2020).

25 Pa. Code § 89.152. Water supply replacement: special provisions.

§ 89.152. Water supply replacement: special provisions.

 (a)  In the case of an EPACT water supply, an operator may not be required to restore or replace the water supply if one of the following has occurred:

   (1)  The Department has determined that a replacement water supply meeting the criteria in §  89.145a(f) (relating to water supply replacement: performance standards) cannot be developed and the operator has purchased the property for a sum equal to the property’s fair market value immediately prior to the time the water supply was affected or has made a one-time payment equal to the difference between the property’s fair market value determined immediately prior to the time the water supply was affected and the fair market value determined at the time payment is made.

   (2)  The landowner and operator have entered into a valid voluntary agreement under section 5.3(a)(5) of The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. §  1406.5c(a)(5)) which does not require restoration or replacement of the water supply and the Department has determined that an adequate replacement water supply could feasibly be developed.

   (3)  The operator can demonstrate one of the following:

     (i)   The contamination, diminution or interruption existed prior to the underground mining activities as determined by a premining survey, and the operator’s underground mining activities did not worsen the preexisting contamination, diminution or interruption.

     (ii)   The contamination, diminution or interruption occurred more than 3 years after underground mining activities occurred.

     (iii)   The contamination, diminution or interruption occurred as the result of some cause other than the underground mining activities.

 (b)  In the case of a water supply other than an EPACT water supply, an operator will not be required to restore or replace a water supply if the operator can demonstrate one of the following:

   (1)  The contamination, diminution or interruption existed prior to the underground mining activities as determined by a premining survey, and the operator’s underground mining activities did not worsen the preexisting contamination, diminution or interruption.

   (2)  The contamination, diminution or interruption is due to underground mining activities which occurred more than 3 years prior to the onset of water supply contamination, diminution or interruption.

   (3)  The contamination, diminution or interruption occurred as the result of some cause other than the underground mining activities.

   (4)  The claim for contamination, diminution or interruption of the water supply was made more than 2 years after the water supply was adversely affected by the underground mining activities.

   (5)  That the operator has done one of the following:

     (i)   Has purchased the property for a sum equal to the property’s fair market value immediately prior to the time the water supply was affected or has made a one-time payment equal to the difference between the property’s fair market value determined immediately prior to the time the water supply was affected and the fair market value determined at the time payment is made.

     (ii)   The landowner and operator have entered into a valid voluntary agreement under section 5.3 of The Bituminous Mine Subsidence and Land Conservation Act which does not require restoration or replacement of the water supply or authorizes a lesser amount of compensation to the landowner than provided by section 5.3(a)(5) of The Bituminous Mine Subsidence and Land Conservation Act.

 (c)  This section does not apply to underground mining activities which are governed by Chapter 87 (relating to surface mining of coal).

Authority

   The provisions of this §  89.152 amended under section 7 of The Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) (52 P. S. §  1406.7); section 5 of The Clean Streams Law (35 P. S. §  691.5); section 4.2 of the Surface Mining Conservation and Reclamation Act (52 P. S. §  1396.4b); section 3.2 of the Coal Refuse Disposal Control Act (52 P. S. §  30.53b); and section 1920-A of The Administrative Code of 1929 (71 P. S. §  510-20).

   Editor’s Note: Certain parts of the rulemaking at 35 Pa.B. 5775 are authorized under a Federal action that superseded sections 5.1(b), 5.2(g)—(h), 5.4(a)(3) and (c) and 5.5(b) of the BMSLCA (52 P. S. § §  1406.5a(b), 1406.5b(g)—(h), 1406.5d(a)(3) and (c) and 1406.5e(b)) to the extent these statutory provisions conflicted with the Federal Surface Mining Control and Reclamation Act of 1977 (Federal SMCRA) (30 U.S.C.A. § §  1201—1328). The Federal action effecting these changes was published at 69 FR 71551 (December 9, 2004).

Source

   The provisions of this §  89.152 adopted June 12, 1998, effective June 13, 1998, 28 Pa.B. 2761; amended October 21, 2005, effective October 22, 2005, 35 Pa.B. 5775. Immediately preceding text appears at serial pages (313591) to (313592).

Cross References

   This section cited in 25 Pa. Code §  89.145a (relating to water supply replacement: performance standards).



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