§ 1396.4. Mining permit; reclamation plan; bond
Purdon's Pennsylvania Statutes and Consolidated StatutesTitle 52 P.S. Mines and MiningEffective: December 24, 2012
Effective: December 24, 2012
52 P.S. § 1396.4
§ 1396.4. Mining permit; reclamation plan; bond
(a) Before any person shall hereafter proceed to mine coal by the surface mining method, he shall apply to the department, on a form prepared and furnished by the department, for a permit for each separate operation. The department is authorized to charge and collect from persons a reasonable filing fee. Such fee shall not exceed the cost of reviewing, administering and enforcing such permit. As a part of each application for a permit, the operator shall, unless modified or waived by the department for cause, furnish the following:
(1) Map and Related Information. An accurately surveyed map or plan, in duplicate, on a scale satisfactory to the department, but in no event less than 1:25,000, in a manner satisfactory to the department, showing the location of the tract or tracts of land to be affected by the operation contemplated, and such cross-sections at such intervals as the department may prescribe. Such surveyed map or plan and cross-sections shall be prepared and certified by a registered professional engineer, registered professional land surveyor or professional geologist with assistance from experts in related fields and shall show the boundaries of the proposed land affected, together with the drainage area above and below such area, the location and names of all streams, roads, railroads and utility lines on or immediately adjacent to the area, the location of all buildings within one thousand feet of the outer perimeter of the area affected, the names and addresses of the owners and present occupants thereof, the purpose for which each such building is used, the name of the owner of the area and the names of adjacent landowners, the municipality or township and county, and if in a township, the nearest municipality. Such map or plan shall also show the results of test borings which the operator has conducted or will conduct at the site of the proposed operation and shall include the nature and depth of the various strata, the thickness of any coal or mineral seam, a complete analysis of any coal, the mineral seam, an analysis of the overburden, the crop line of any coal, or mineral or minerals to be mined and the location of test boring holes. All papers, records, and documents of the department, and applications for permits pending before the department, shall be public records open to inspection during business hours: Provided, however, That information which pertains only to the analysis of the chemical and physical properties of the coal (excepting information regarding such mineral or elemental content which is potentially toxic in the environment) shall be kept confidential and not made a matter of public record. Aerial photographs of the tract or tracts of land to be affected by the operation shall also be provided if such photographs are required by the department.
C. A description of the manner in which the operation will segregate and conserve topsoil and if necessary suitable subsoil to establish on the areas proposed to be affected a diverse, effective, and permanent vegetative cover of the same seasonal variety native to the area of land to be affected and capable of self-regeneration and plant succession at least equal in extent of cover to the natural vegetation of the area: Provided, however, That introduced species may be used in the revegetation process where desirable and necessary to achieve the approved post-mining land use plan: And provided further, That when the department issues a written finding approving a long-term, intensive, agricultural post-mining land use as part of the permit application, the department may grant an exception to the requirements of this clause. For areas previously disturbed by surface mining activities that were not reclaimed to the standards of this act, and are proposed for remining, the department may approve a vegetative cover which, at a minimum, shall not be less than the ground cover existing before redisturbance and shall be adequate to control erosion and achieve an approved post-mining land use. To the extent consistent with this act, the department shall encourage and promote the use of switchgrass, camelina, canola and other bioenergy crops for the revegetation of lands affected by surface mining activities, and the land so used shall be considered to be cropland for post-mining land use purposes.
(i) In the case of anthracite or bituminous coal mining, the reclamation plan shall provide for contouring except that terracing shall be permitted if the operator demonstrates and the department finds in writing, that the area proposed to be affected had previously been mined prior to current practices and standards, the area proposed to be affected cannot be reclaimed by contouring, and reaffecting the area is likely to produce an environmental benefit. Other alternatives to contouring or terracing may be proposed to attempt to obtain a variance in cases where the land is proposed to be made suitable after mining and reclamation for currently planned or designated industrial, commercial, agricultural, residential, recreational or public use. In the discretion of the department, diversion structures and impoundments may be constructed on the reclaimed area of the operation if they are part of an approved drainage control plan and meet all applicable requirements of law. Any such variance shall be granted by the department in writing only after such conditions as the department shall prescribe are met, including but not limited to conditions relating to backfilling, highwall elimination, watershed protection, surface owner's consent, consultation with appropriate land use planning agencies, equal or better economic or public use, and certification of the project by a registered professional engineer or professional geologist, with assistance from experts in related fields. Such alternatives shall not be approved if the proposed alternative or use is not likely to be achieved, poses an actual or potential threat to public health or safety or of water diminution, interruption, contamination or pollution, is inconsistent with applicable land use policies, plans and programs and Federal, State and local law or involves unreasonable delay in implementation; or
(ii) In the case of surface mining for other than anthracite or bituminous coal, other alternatives to contouring or terracing may be proposed, in conjunction with such proposed land uses as water impoundment, water-oriented real estate development, recreational area development, industrial site development or solid waste disposal area development, and unless such proposed alternatives or uses are not likely to be achieved, post an actual or potential threat to public health or safety or of water diminution, interruption, contamination or pollution, are inconsistent with applicable land use policies, plans and programs and Federal, State or local law or involve unreasonable delay in implementation: Provided, however, That the variance procedure set out in clause (1) shall not be applicable to the department's determination to grant or deny a permit application under this clause.
F. Except for permit applications based upon leases in existence on January 1, 1964 for bituminous coal surface mines, or leases in existence on January 1, 1972 for anthracite coal surface mining operations and all noncoal surface mining operations, the application for a permit shall include, upon a form prepared and furnished by the department, the written consent of the landowner to entry upon any land to be affected by the operation by the operator and by the Commonwealth and any of its authorized agents prior to the initiation of surface mining operations, during surface mining operations and for a period of five years after the operation is completed or abandoned for the purpose of reclamation, planting, and inspection or for the construction of any pollution abatement facilities as may be deemed necessary by the department for the purposes of this act. In the case of leases in existence in January 1, 1964, for bituminous coal surface mines, or leases in existence on January 1, 1972 for anthracite coal surface mining operations and all noncoal surface mining operations, the application for permit shall include upon a form prescribed and furnished by the department, a notice of the existence of such lease and a description of the chain of title:
(i) Such forms shall be deemed to be recordable documents, and prior to the initiation of surface mining operations under the permit, such forms shall be recorded by the applicant at the office of the recorder of deeds in the county or counties in which the area to be affected under the permit is situate.
(ii) The forms shall require the information and execution necessary to provide entry upon land to be affected by the operation without constraints pertaining to the assignability, transferability or duration of the consent except as provided for in this act. Furthermore, this form shall not be construed to alter or constrain the contractual agreements and rights of the parties thereto: Provided, however, That, in the case of permit applications for coal refuse disposal areas, coal preparation facilities which are not situated on a surface mining permit area and the surface activities of underground mines, the applicant shall submit a description of the documents upon which the applicant bases the right to enter upon the surface land and conduct mining activities. During the mining activities and for a period of five (5) years after completion or abandonment of the mining and reclamation activities, the department shall have access to permitted surface facilities and lands for the purpose of reclamation, planting and inspection or for the construction of pollution-abatement facilities deemed necessary by the department for the purposes of this act. If a landowner fails or refuses to comply with an order issued under this section, the landowner shall be liable for reasonable legal expenses incurred by the department in enforcing the order. For purposes of this section, “landowner” includes a person holding title to or having a proprietary interest in either surface or subsurface rights. Compliance with this section shall satisfy the requirements of subsection (g) of section 315 of the act of June 22, 1937 (P.L. 1987, No. 394), known as “The Clean Streams Law,” and subsection (m) of section 5 of the act of September 24, 1968 (P.L. 1040, No. 318),1 known as the “Coal Refuse Disposal Control Act.”
G. The application shall also set forth the manner in which the operator plans to divert surface water from draining into the pit and the manner in which he plans to prevent water from accumulating in the pit. No approval shall be granted unless the plan provides for a practicable method of avoiding acid mine drainage and preventing avoidable siltation or other stream pollution. Failure to prevent water from draining into or accumulating in the pit, or to prevent stream pollution, during surface mining or thereafter, shall render the operator liable to the sanctions and penalties provided in this act and in “The Clean Streams Law,” and shall be cause for revocation of any approval license or permit issued by the department to the operator.
H. The application shall also set forth the manner in which the operator plans to comply with the requirements of the act of January 8, 1960 (1959 P.L.2119, No. 787), known as the “Air Pollution Control Act,” the act of June 22, 1937 (P.L. 1987, No. 394),2 known as “The Clean Streams Law,” the act of September 24, 1968 (P.L. 1040, No. 318),3 known as the “Coal Refuse Disposal Control Act,” and where applicable, the act of July 31, 1968 (P.L. 788, No. 241),4 known as the “Pennsylvania Solid Waste Management Act,” or the act of July 7, 1980 (No. 97),5 known as the “Solid Waste Management Act,” the act of November 26, 1978 (P.L. 1375, No. 325),6 known as the “Dam Safety and Encroachments Act.” No approval shall be granted unless the plan provides for compliance with the statutes hereinabove enumerated, and failure to comply with the statutes hereinabove enumerated during mining or thereafter shall render the operator liable to the sanctions and penalties provided in this act for violations of this act and to the sanctions and penalties provided in the statutes hereinabove enumerated for violations of such statutes. Such failure to comply shall be cause for revocation of any approval or permit issued by the department to the operator: Provided, however, That a violation of the statutes hereinabove enumerated shall not be deemed a violation of this act unless this statute's provisions are violated but shall only be cause for revocation of the operator's permit: And provided further, That nothing in this clause shall be read to limit the department's authority to regulate activities in a coordinated manner. Compliance with the provisions of this clause and with the provisions of this act and the provisions of the statutes hereinabove enumerated shall not relieve the operator of the responsibility for complying with the provisions of all other applicable statutes, including but not limited to the act of July 17, 1961 (P.L. 659, No. 339),7 known as the “Pennsylvania Bituminous Coal Mine Act,” the act of November 10, 1965 (P.L. 721, No. 346),8 known as the “Pennsylvania Anthracite Coal Mine Act,” and the act of July 9, 1976 (P.L. 931, No. 178),9 entitled “An act providing for emergency medical personnel; employment of emergency medical personnel and emergency communications in coal mines.”
I. In the case of surface coal mining, the application shall also include a statement of the land use proposed for the affected area after mining and reclamation are completed. The department shall not approve any post-mining land use unless the application demonstrates that the operation will restore the land affected to a condition capable of supporting the uses it was capable of supporting prior to any mining, or to any higher or better uses. No post-mining land use or uses shall be approved unless the application demonstrates that the use or uses are reasonably likely to be achieved, do not present any actual or potential threat to public health or safety or to fish and wildlife or of water diminution, interruption, contamination or pollution, are consistent with applicable land use policies, plans and programs and Federal, State or local law, and involve no unreasonable delay in implementation. In the case of noncoal surface mining, the application shall include such information concerning post-mining land use as may be prescribed by regulations promulgated hereunder.
J. In the case of surface coal mining, for those lands identified in the permit application which a reconnaissance inspection suggests may be prime farmlands, a soil survey shall be made or obtained by the permit applicant according to standards established by the United States Secretary of Agriculture in order to confirm the exact location of any such farmlands. In no case shall the department grant a permit to affect prime farmland unless after consultation with the United States Department of Agriculture the department finds in writing that the operator has the technological capability to restore such affected area, within a reasonable time, to equivalent or higher levels of yield as nonaffected prime farmland in the surrounding area under equivalent levels of management, meets all relevant regulations of the United States Department of the Interior, and can meet such soil reconstruction standards as the department may prescribe by rule and regulation promulgated hereunder. In the case of noncoal surface mining, the application shall include such information concerning prime farmlands as may be prescribed by regulations promulgated hereunder.
K. The application shall also demonstrate that the proposed operation will be conducted so as to maximize the utilization and conservation of the solid fuel resource being recovered so that reaffecting the land in the future can be minimized: Provided, however, That such resource utilization and conservation shall not excuse in any manner the operator from complying in full with all environmental protection and health and safety standards.
(b) The applicant shall give public notice of every application for a permit or a bond release under this act in a newspaper of general circulation, published in the locality where the permit is applied for, once a week for four consecutive weeks. The department shall prescribe such requirements regarding public notice and public hearings on permit applications and bond releases as it deems appropriate: Provided, however, That increments within the original permit area upon which operations are initiated shall not be treated as original permit applications with regard to the requirements of this subsection so long as the original permit is in full force and effect at the time the operations are initiated. For the purpose of these public hearings, the department shall have the authority and is hereby empowered to administer oaths, subpoena witnesses, or written or printed materials, compel the attendance of witnesses, or production of witnesses, or production of materials, and take evidence including but not limited to inspections of the land proposed to be affected and other operations carried on by the applicant in the general vicinity. Any person having an interest which is or may be adversely affected by any action of the department under this section may proceed to lodge an appeal with the Environmental Hearing Board in the manner provided by law and from the adjudication of said board such person may further appeal as provided by Title 2 of the Pennsylvania Consolidated Statutes (relating to administrative law and procedure). In all cases involving surface coal mining operations, any person having an interest which is or may be adversely affected shall have the right to file written objections to the proposed permit application or bond release within thirty (30) days after the last publication of the above notice which shall conclude the public comment period. Such objections shall immediately be transmitted to the applicant by the department. If written objections are filed and an informal conference or a public hearing requested within the public comment period, the department shall then hold an informal conference or a public hearing in the locality of the surface mining operation. In the case of bond release applications, such hearings or conferences shall be held within thirty (30) days from the date of request for such hearings or conferences: Provided, however, That all requests for such hearings or conferences that are filed prior to the tenth day following the final date of publication shall have a constructive date of filing as of the tenth day following the final date of publication of such notice. The department shall notify the applicant of its decision within thirty (30) days of such hearing or conference. If there has been no conference or hearing, the department shall notify the applicant for a bond release of its decision within sixty (60) days of the date of the filing of the application. In the case of permit applications, such hearings or conferences shall be conducted within sixty (60) days of the close of the public comment period. The department, within sixty (60) days of such hearing or conference, shall notify the applicant of its decision to approve or disapprove or of its intent to disapprove subject to the submission of additional information to resolve deficiencies. If there has been no informal conference or hearing, the department shall notify the applicant for a permit, within a reasonable time not to exceed sixty (60) days of the close of the public comment period, of the deficiencies in the application or whether the application has been approved or disapproved. The applicant, operator, or any person having an interest which is or may be adversely affected by an action of the department to grant or deny a permit or to release or deny release of a bond and who participated in the informal hearing held pursuant to this subsection or filed written objections before the close of the public comment period, may proceed to lodge an appeal with the Environmental Hearing Board in the manner provided by law and from the adjudication of said board such person may further appeal as provided by Title 2 of the Pennsylvania Consolidated Statutes. Subject to the confidentiality provisions of subsection (a)(1), each applicant for a permit under this act shall file a copy of his application for public inspection, with the recorder of deeds at the courthouse of the county or an appropriate public office approved by the department where the mining is proposed to occur.
(c) Upon receipt of an application, the department shall review the same and shall make such further inquiries, inspections or examinations as may be necessary or desirable for a proper evaluation thereof. Should the department object to any part of the proposal, it shall promptly notify the applicant in writing of its objections, setting forth its reasons therefor, and shall afford the applicant a reasonable opportunity to make such amendments or take such other actions as may be required to remove the objections. Should any person having an interest which is or may be adversely affected by any action of the department under this subsection, or by the failure of the department to act upon an application for a permit, he may proceed to lodge an appeal with the Environmental Hearing Board in the manner provided by law, and from the adjudication of said board he may further appeal as provided by Title 2 of the Pennsylvania Consolidated Statutes (relating to administrative law and procedure).
(d) Prior to commencing surface mining, the permittee shall file with the department a bond for the land affected by each operation on a form to be prescribed and furnished by the department, payable to the Commonwealth and conditioned that the permittee shall faithfully perform all of the requirements of this act and of the act of June 22, 1937 (P.L. 1987, No. 394), known as “The Clean Streams Law,” the act of January 8, 1960 (1959 P.L. 2119, No. 787),10 known as the “Air Pollution Control Act,” the act of September 24, 1968 (P.L. 1040, No. 318), known as the “Coal Refuse Disposal Control Act,” and, where applicable, of the act of July 31, 1968 (P.L. 788, No. 241), known as the “Pennsylvania Solid Waste Management Act,” the act of July 7, 1980 (P.L. 380, No. 97), known as the “Solid Waste Management Act,” or the act of November 26, 1978 (P.L. 1375, No. 325), known as the “Dam Safety and Encroachments Act”: Provided, however, That an operator posting a bond sufficient to comply with this section of the act shall not be required to post a separate bond for the permitted area under each of the acts hereinabove enumerated: And provided further, That the foregoing proviso shall not prohibit the department from requiring additional bond amounts for the permitted area should such an increase be determined by the department to be necessary to meet the requirements of this act. The amount of the bond required shall be in an amount determined by the department based upon the total estimated cost to the Commonwealth of completing the approved reclamation plan, or in such other amount and form as may be established by the department pursuant to regulations for an alternate coal bonding program which shall achieve the objectives and purposes of the bonding program. Said estimate shall be based upon the permittee's statement of his estimated cost of fulfilling the plan during the course of his operation, inspection of the application and other documents submitted, inspection of the land area, and such other criteria as may be relevant, including, but not limited to, the probable difficulty of reclamation giving consideration to such factors as topography, geology of the site, hydrology, the proposed land use and the additional cost to the Commonwealth which may be entailed by being required to bring personnel and equipment to the site after abandonment by the permittee, in excess of the cost to the permittee of performing the necessary work during the course of his surface mining operations. When the plan involves the reconstruction or relocation of any public road or highway, the amount of the bond shall include an amount sufficient to fully build or restore the road or highway to a condition approved by the Department of Transportation. No bond shall be filed for less than ten thousand dollars ($10,000.00) for the entire permit area. Liability under such bond shall be for the duration of the surface mining at each operation, and for a period of five full years after the last year of augmented seeding and fertilizing and any other work to complete reclamation to meet the requirements of law and protect the environment, unless released in part prior thereto as hereinafter provided. The bond or collateral required herein must be in an amount and on a form containing such terms and conditions as approved by the department and may be a surety bond executed by the operator and a corporate surety licensed to do business in this Commonwealth and approved by the secretary; it may be cash; it may be automatically renewable irrevocable letters of credit which may be terminated by the bank at the end of the term only upon the bank giving ninety (90) days' prior written notice to the permittee and the department; it may be negotiable bonds of the United States Government or the Commonwealth of Pennsylvania, the Pennsylvania Turnpike Commission, The General State Authority, the State Public School Building Authority or any municipality within this Commonwealth; it may be a life insurance policy which is and states on its face that it is fully paid and noncancelable with a cash surrender value irrevocably assigned to the department at least equal to the amount of the required bonds and which shall not be borrowed against and shall not be utilized for any other purpose than financial assurance assuring reclamation; it may be an annuity or trust fund of which the department is the irrevocably named beneficiary; it may be a land reclamation financial guarantee consistent with section 19.2 of this act11 and the department's regulations implementing the land reclamation financial guarantee program; or it may be other instruments which the Environmental Quality Board may authorize through regulation. The stated amount of irrevocable letters of credit and the market value of negotiable securities shall be equal at least to the amount of the required bond. Combinations of bonding instruments may be allowed pursuant to regulations adopted by the Environmental Quality Board. The secretary shall, upon receipt of any such deposit of cash, letters of credit or negotiable bonds immediately place the same with the State Treasurer, whose duty it shall be to receive and hold the same in the name of the Commonwealth, in trust, for the purposes for which such deposit is made. The State Treasurer shall at all times be responsible for the custody and safekeeping of such deposits. The permittee making the deposit shall be entitled from time to time to demand and receive from the State Treasurer, on the written order of the secretary, the whole or any portion of any collateral so deposited, upon depositing with him, in lieu thereof, other collateral of the classes herein specified having a market value at least equal to the sum of the bond, and also to demand, receive and recover the interest and income from said negotiable bonds as the same becomes due and payable: Provided, however, That where negotiable bonds, deposited as aforesaid, mature or are called, the State Treasurer, at the request of the permittee, shall convert such negotiable bonds into such other negotiable bonds of the classes herein specified as may be designated by the permittee: And, provided further, That where notice of intent to terminate a letter of credit is given, the department shall give the permittee thirty (30) days' written notice to replace the letter of credit with other acceptable bond guarantees as provided herein, and if the permittee fails to replace the letter of credit within the thirty (30) day notification period, the department shall draw upon and convert such letter of credit into cash and hold it as a collateral bond guarantee; or the department, in its discretion, may accept a self-bond from the permittee, without separate surety, if the permittee demonstrates to the satisfaction of the department a history of financial solvency, continuous business operation and continuous efforts to achieve compliance with all United States of America and Pennsylvania environmental laws, and, meets all of the following requirements:
(2) The permittee or if the permittee does not issue separate audited financial statements, its parent, shall provide audited financial statements for at least its most recent three (3) fiscal years prepared by a certified public accountant in accordance with generally accepted accounting principles. Upon request of the permittee, the department shall maintain the confidentiality of such financial statements if the same are not otherwise disclosed to other government agencies or the public.
(3) During the last thirty-six (36) calendar months, the applicant has not defaulted in the payment of any dividend or sinking fund installment or preferred stock or installment on any indebtedness for borrowed money or payment of rentals under long-term leases or any reclamation fee payment currently due under the Federal Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1232, for each ton of coal produced in the Commonwealth of Pennsylvania.
(4) The permittee shall have been in business and operating no less than ten (10) years prior to filing of application unless the permittee's existence results from a reorganization, consolidation or merger involving a company with such longevity. However, the permittee shall be deemed to have met this requirement if it is a majority-owned subsidiary of a corporation which has such a ten (10) year business history.
(7) A corporate officer of the permittee shall certify to the department that forfeiture of the aggregate amounts of self-bonds furnished for all operations hereunder would not materially affect the permittee's ability to remain in business or endanger its cash flow to the extent it could not meet its current obligations.
(8) The permittee may be required by the department to pledge real and personal property to guarantee the permittee's self-bond. The department is authorized to acquire and dispose of such property in the event of a default to the bond obligation and may use the moneys in the Surface Mining Conservation and Reclamation Fund to administer this provision.
(d.2) The department may establish alternative financial assurance mechanisms which shall achieve the objectives and purposes of the bonding program. These mechanisms may include, but are not limited to, the establishment of a site-specific trust fund funded by the operator for the treatment of post-mining discharges of mine drainage. Within one hundred eighty (180) days after the effective date of this act, the department shall recommend to the Governor alternative financing mechanisms for the perpetual treatment of post-mining discharges of mine drainage. This provision shall in no way affect the department's review of permit applications under existing law which prohibits the department from issuing a mining permit unless the applicant demonstrates that there is no presumptive evidence of potential pollution of the waters of this Commonwealth.
(e) Notwithstanding the provisions of subsection (c) of this section, in the case of applications for the mining of minerals where the department determines that the mineral to be extracted exceeds the amount of overburden by a ratio of at least four to one or the minerals are to be removed by underground mining methods, and the mining operations are reasonably anticipated to continue for a period of at least ten years from the date of application, the term of the bond shall be for the duration of the mining and reclamation operations and for five years thereafter. The operator, in the case of mining and reclamation operations hereinbefore mentioned by this subsection (e), may elect to deposit collateral and file a collateral bond as provided in subsection (d) according to the following phased deposit schedule. The operator shall, prior to commencing mining operations, deposit ten thousand dollars ($10,000.00) or twenty-five per cent of the amount of the bond determined under subsection (d), whichever is greater. The operator shall, thereafter, annually deposit ten per cent of the remaining bond amount for a period of ten (10) years. Interest accumulated by such collateral shall become a part of the bond. The department may require additional bonding at any time to meet the intent of subsection (d). The collateral shall be deposited, in trust, with the State Treasurer as provided in subsection (d) or with a bank, selected by the department, which shall act as trustee for the benefit of the Commonwealth, according to rules and regulations promulgated hereunder, to guarantee the operator's compliance with this act, and the statutes enumerated in subsection (d). The operator shall be required to pay all costs of the trust. The collateral deposit, or part thereof, shall be released of liability and returned to the operator, together with a proportional share of accumulated interest, upon the conditions of and pursuant to the schedule and criteria for release provided in subsection (g).
(e.1) The department may, in lieu of a bond required by subsection (d) or (e), require the operator of an underground mining operation to purchase subsidence insurance, as provided by the act of August 23, 1961 (P.L. 1068, No. 484), entitled, as amended, “An act to provide for the creation and administration of a Coal and Clay Mine Subsidence Insurance Fund within the Department of Environmental Resources for the insurance of compensation for damages to subscribers thereto; declaring false oaths by the subscribers to be misdemeanors; providing penalties for the violation thereof; and making an appropriation,”12 for the benefit of all affected surface property owners on account of damage caused by subsidence. The insurance coverage shall be in an amount determined by the department to be sufficient to remedy any and all damage. The term of this obligation shall be for the duration of the mining and reclamation operation and for ten years thereafter. For all other surface effects of underground mining, other than subsidence, the operator shall post a bond as required by subsection (d) or (e).
(f) Within ninety days after commencement of surface mining operations and in the case of surface coal mining each thirty and, in the case of noncoal surface mining each three hundred and sixty-five days thereafter unless modified or waived by the department for cause, the operator shall file in triplicate an operations and progress report with the department on a form prescribed and furnished by the department, setting forth (i) the name or number of the operation; (ii) the location of the operation as to county and township and with reference to the nearest public road; (iii) a description of the tract or tracts; (iv) the name and address of the landowner or his duly authorized representative; (v) a monthly report of the mineral produced, number of employes and days worked; (vi) a report of all fatal and nonfatal accidents for the previous three months; (vii) the current status of the reclamation work performed in pursuance of the approved reclamation plan; and (viii) such other or further information as the department may reasonably require.
(g) Subject to the public notice requirements of subsection (b), if the department is satisfied the reclamation covered by the bond or portion thereof has been accomplished as required by this act, it may, upon request by the permittee or any other person having an interest in the bond, including the department, release in whole or in part the bond or deposit according to the following schedule:
(1) At Stage I, when the operator has completed the backfilling, regrading and drainage control of a bonded area in accordance with his approved reclamation plan, the release of up to sixty per cent of the bond for the applicable permit area, so long as provisions for treatment of pollutional discharges, if any, have been made by the operator.
(2) At Stage II, when revegetation has been successfully established on the affected area in accordance with the approved reclamation plan, the department shall retain that amount of bond for the revegetated area which would be sufficient for the cost to the Commonwealth of reestablishing revegetation. Such retention of bond shall be for the duration of liability under the bond as prescribed in subsection (d). No part of the bond shall be released under this subsection so long as the lands to which the release would be applicable are contributing suspended solids to streamflow or runoff outside the permit area in excess of the requirements of law or until soil productivity for prime farmlands has returned to equivalent level of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices as determined from the soil survey performed pursuant to subsection (a)(2)I. Where a permanent impoundment is to be retained, that portion of bond under this subsection may be released under this subsection so long as provisions for sound future maintenance by the operator or the landowner have been made with the department.
(3) At Stage III, when the operator has completed successfully all mining and reclamation activities and has made provisions with the department for the sound future treatment of pollutional discharges, if any, the release of the remaining portion of the bond, but not before the expiration of the period specified for operator responsibility in subsection (d). No bond shall be fully released until all requirements of this act are fully met. Upon release of all or part of the bond and collateral as herein provided, the State Treasurer shall immediately return to the operator the amount of cash or securities specified therein.
(g.1)(1) Where the operator demonstrates that all standards for Stage II bond release have been satisfied with the exception of consistently meeting the mine drainage effluent limitations specified in the permit or otherwise required by law, the department may release the amount of bond which exceeds the cost of ensuring treatment to the effluent limitations specified in the permit, this act, the act of June 22, 1937 (P.L. 1987, No. 394),13 known as “The Clean Streams Law,” the Federal Water Pollution Control Act (62 Stat. 1155, 33 U.S.C. § 1251 et seq.) and the rules and regulations promulgated thereunder, of all the discharges emanating from or hydrologically connected to the mine site for a period of at least fifty (50) years, as calculated by the department.
(2) The release of any bond pursuant to clause (1) or pursuant to regulations promulgated by the Environmental Quality Board establishing a final program in no way alleviates the operator's responsibility to treat discharges of mine drainage emanating from or hydrologically connected to the site to the standards set forth in the permit, this act, “The Clean Streams Law,” the Federal Water Pollution Control Act and the rules and regulations promulgated thereunder.
(g.2)(1) Until such time as the Environmental Quality Board promulgates regulations concerning release of reclamation bonds on mine sites with minimal-impact post-mining discharges, the department may release reclamation bonds held solely for minimal-impact post-mining discharges pursuant to this section, where an operator demonstrates that all of the following exist:
(iii) The operator has designed, constructed and maintained a functioning passive treatment system approved by the department which substantially improved water quality of the discharge after it enters the passive treatment system to the satisfaction of the department. The department shall take into account the cumulative loading of other discharges in ascertaining whether water quality standards are being achieved.
(iv) The operator has established a site-specific trust fund for each minimal-impact post-mining discharge in an amount calculated by the department at least equal to annual operation and maintenance costs of a passive treatment system, capital costs for replacement of the passive treatment system in twenty-five (25) years from the date of its installation, an inflation factor and the cost of treatment of the discharge for at least fifty (50) years. The minimum amount of the fund shall be ten thousand dollars ($10,000).
(3) The department may, if the passive treatment system is not constructed, maintained or functioning properly, pursue any remedies at law or equity, order the operator to upgrade the treatment system or to provide conventional treatment and increase the amount of the site-specific trust fund required to reflect the cost of additional treatment.
(4) The Environmental Quality Board shall promulgate final regulations establishing a program for releasing reclamation bonds held solely for minimal-impact post-mining discharges. In promulgating such regulations, the board shall consider various factors, including, but not limited to, the factors set forth in clause (1).
(g.3) The Environmental Quality Board is authorized to establish by regulation specific criteria for release of reclamation bonds for sites with post-mining discharges of mine drainage, including minimal-impact post-mining discharges: Provided, That alternative financial assurances have been posted by the operator pursuant to subsection (d.2).
(h) If the operator fails or refuses to comply with the requirements of the act in any respect for which liability has been charged on the bond, the department shall declare such bond forfeited, and the amount of the forfeited bond shall be paid over to the department within thirty (30) days after notice by certified mail from the department, and that amount shall be held in escrow with any interest on the bond accruing to the department pending the resolution of any appeals, unless it is determined by a court of competent jurisdiction after exhaustion of appeals that the Commonwealth was not entitled to all or a portion of the amount forfeited in which case the interest shall accrue proportionately to the surety in the amount determined to be improperly forfeited by the department, if any. Where the operator has deposited cash or securities as collateral in lieu of a surety bond, the department shall declare such portion of said collateral forfeited, and shall direct the State Treasurer to pay said funds into the Surface Mining Conservation and Reclamation Fund, or to proceed to sell said securities to the extent forfeited and pay the proceeds thereof into the Surface Mining Conservation and Reclamation Fund. Should any corporate surety fail to promptly pay, in full, a forfeited bond, it shall be disqualified from writing any further surety bonds under this act. Any operator aggrieved by reason of forfeiting the bond or converting collateral, as herein provided, shall have a right to contest such action and appeal therefrom as herein provided. A corporate surety issuing surety bonds which are forfeited by the department shall have the option of reclaiming the forfeited site, in lieu of paying the bond amount to the department, upon the consent and approval of the department. A corporate surety issuing surety bonds which are forfeited may propose, upon the consent and approval of the department, the reclamation of the forfeited mine sites after payment of the amount of the forfeited bonds to the department. If the department approves the corporate surety's proposal to reclaim the forfeited site after the surety pays the bond amount to the department, the State Treasurer shall return to the corporate surety any moneys paid to the department in connection with the forfeited bond provided the proposal includes acceptable financial assurance. Acceptable financial assurance includes the department withholding return of the moneys until the reclamation is complete or the posting of a replacement bond.
(i) Should any operator be aggrieved by any decision or action of the secretary with respect to the amount of any bond, the terms, conditions or release thereof, or any other matter related thereto, he may proceed to lodge an appeal with the Environmental Hearing Board in the manner provided by law, and from the adjudication of said board he may further appeal as provided by Title 2, of the Pennsylvania Consolidated Statutes (relating to administrative law and procedure).
(j) Notwithstanding the provisions of subsections (d) and (e) of this section and of section 3.1(c),14 in the case of applications for the surface mining of minerals other than anthracite and bituminous coal where the department determines that the amount of marketable minerals to be extracted does not exceed two thousand (2,000) tons, no certificate of insurance nor bond shall be required.
Credits
1945, May 31, P.L. 1198, § 4. Amended 1949, May 23, P.L. 1730, § 1; 1956, May 10, P.L. (1955) 1562, § 1; 1961, Sept. 2, P.L. 1210, § 2; 1963, July 16, P.L. 238, § 2; 1968, Dec. 10, P.L. 1167, No. 370, § 3; 1971, Nov. 30, P.L. 554, No. 147, § 5; 1973, Oct. 18, P.L. 306, No. 94, § 1; 1980, Oct. 10, P.L. 835, No. 155, § 5, imd. effective; 1983, Dec. 20, P.L. 278, No. 74, § 2, imd. effective; 1984, Oct. 12, P.L. 916, No. 181, § 2, effective in 60 days; 1986, Dec. 12, P.L. 1570, No. 171, § 2, imd. effective; 1992, Dec. 18, P.L. 1384, No. 173, § 4, effective in 60 days; 1996, May 22, P.L. 232, No. 43, § 3, effective in 60 days. Affected 2000, Dec. 20, P.L. 980, No. 138, § 2, effective in 60 days. Amended 2012, July 5, P.L. 918, No. 95, § 2, effective in 60 days [Sept. 4, 2012]; 2012, Oct. 24, P.L. 1276, No. 157, § 1, effective in 60 days [Dec. 24, 2012].
Footnotes
52 P.S. § 30.55(m).
35 P.S. § 691.1 et seq.
52 P.S. § 30.51 et seq.
35 P.S. §§ 6001 to 6017 (repealed).
35 P.S. § 6018.101 et seq.
32 P.S. § 693.1 et seq.
52 P.S. § 701-101 et seq. (repealed); see now 52 P.S. § 690-101.
52 P.S. § 70-101 et seq.
52 P.S. § 27.7-1 et seq.
35 P.S. § 4001 et seq.
52 P.S. § 1396.19b.
52 P.S. § 3201 et seq.
35 P.S. § 691.1 et seq.
52 P.S. § 1396.3a(c).
52 P.S. § 1396.4, PA ST 52 P.S. § 1396.4
Current through Act 10 of the 2024 Regular Session. Some statute sections may be more current, see credits for details.
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