Section 89.145a. Water supply replacement: performance standards

(a) Water supply surveys.

(1) The operator shall conduct a premining survey and may conduct a postmining survey of the quantity and quality of all water supplies within the permit and adjacent areas, except when the landowner denies the operator access to the site to conduct a survey and the operator has complied with the notice procedure in this section. Premining surveys shall be conducted prior to the time a water supply is susceptible to mining-related effects. Survey information must include the following information to the extent that it can be collected without excessive inconvenience to the landowner:

(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, hardness, total coliform, acidity, alkalinity and sulfates. An operator who obtains water samples in a premining or postmining survey shall utilize a certified laboratory to analyze the samples.

(iv) The quantity of the water.

(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) Hydrogeologic data such as the static water level and yield determination.

(2) The operator shall submit copies of the results of the analyses, as well as the results of any quantitative analysis, to the Department and to the landowner within 30 days of their receipt by the operator.

(3) If the operator cannot make a premining or postmining survey because the owner will not allow access to the site, the operator shall submit evidence to the Department of the following:

(i) The operator notified the landowner by certified mail or personal service of the landowner’s rights in sections 5.1—5.3 of The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § § 1406.5a—1406.5c), and the effect on the landowner of the landowner’s denial to the operator of access to the site as described in section 5.2(d) of The Bituminous Mine Subsidence and Land Conservation Act.

(ii) The operator’s attempt to conduct a survey.

(iii) The landowner failed to authorize access to the operator to conduct a survey within 10 days of receipt of the operator’s notice of intent to conduct a survey.

(b) Restoration or replacement of water supplies. When underground mining activities conducted on or after August 21, 1994, affect a public or private water supply by contamination, diminution or interruption, the operator shall promptly restore or replace the affected water supply with a permanent alternate source which adequately serves the premining uses of the water supply and any reasonably foreseeable uses of the water supply. The operator shall be relieved of any responsibility under The Bituminous Mine Subsidence and Land Conservation Act (52 P. S. § § 1406.1—1406.21) to restore or replace a water supply if the operator demonstrates that one of the provisions of § 89.152 (relating to water supply replacement: special provisions) relieves the operator of further responsibility. This subsection does not apply to water supplies affected by underground mining activities which are covered by Chapter 87 (relating to surface mining of coal).

(c) Within 24 hours of an operator’s receipt of a claim of water supply contamination, diminution or interruption, the operator shall notify the Department of the claim.

(d) Investigation and reporting of water supply damage complaints. Upon receipt of notification that a water supply has been contaminated, diminished or interrupted and that the operator’s underground mining activities may have caused the contamination, diminution or interruption, the operator shall diligently investigate the complaint and notify the Department in a timely manner of the results of the operator’s investigation. This subsection does not apply to water supplies affected by underground mining activities which are governed by Chapter 87.

(e) Temporary water supplies.

(1) If the affected water supply is within the rebuttable presumption area and the rebuttable presumption applies and the landowner or water user is without a readily available alternate source, the operator shall provide a temporary water supply within 24 hours of being contacted by the landowner or water supply user or the Department, whichever occurs first.

(2) An operator shall promptly provide a temporary water supply if the operator or the Department finds that the operator’s underground mining activities have caused contamination, diminution or interruption of an EPACT water supply, and the landowner or water user is without a readily available alternate source of water. This requirement applies regardless of whether the water supply is located within, or outside of, the rebuttable presumption area.

(3) The temporary water supply provided under this subsection must meet the requirements of subsection (f)(2) and provide a sufficient amount of water to meet the water supply user’s needs.

(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 criteria for adequacy as follows:

(1) Reliability, maintenance and control. A restored or replaced water supply, at a minimum, must:

(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 owner and the user with as much control and accessibility as exercised over the previous water supply.

(2) Quality. A restored or replaced water supply will be deemed adequate when it differs in quality from the premining water supply, if it meets the Pennsylvania Safe Drinking Water Act (35 P. S. § § 721.1—721.17), or is comparable to the premining water supply when that water supply did not meet these standards.

(3) Adequate quantity. 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 water user’s needs and the demands of any reasonably foreseeable uses.

(ii) It is established through a connection to a public water supply system which is capable of delivering the amount of water necessary to satisfy the water user’s needs and the demands of any reasonably foreseeable uses.

(iii) For purposes of this paragraph and with respect to agricultural water supplies, the term reasonably foreseeable uses includes the reasonable expansion of use where the water supply available prior to mining exceeded the farmer’s actual use.

(4) Water source serviceability. A replacement of a water supply must include the installation of any piping, pumping equipment and treatment equipment necessary to put the replaced water source into service.

(5) Cost to landowner or water user. A restored or replacement water supply must meet the following costs criteria:

(i) The restored or replacement water supply may not cost the landowner or water user more to operate and maintain than the previous water supply.

(ii) If the operation and maintenance costs of the restored or replacement water supply are more than the operation and maintenance costs of the previous water supply, the operator shall provide for the permanent payment of the increased operating and maintenance cost of the restored or replacement water supply.

(iii) Upon agreement by the operator and the landowner or water user, the obligation to pay the increased operation and maintenance costs may be satisfied by a one-time payment in an amount which covers the present worth of the increased annual operation and maintenance costs for a period agreed to by the operator and the landowner or water user.

The provisions of this § 89.145a 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 (313586) to (313589).

Notation

Authority

The provisions of this § 89.145a 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).

Cross References

This section cited in 25 Pa. Code § 89.5 (relating to definitions); 25 Pa. Code § 89.152 (relating to water supply replacement: special provisions); and 25 Pa. Code § 89.153 (relating to water supply replacement: rebuttable presumption).