(a) Except as provided in subsection (b), the
operator will not be required to repair a structure or compensate a structure
owner for damage to structures identified in §
89.142a(f)(1)
(relating to subsidence control: performance standards) if the operator
demonstrates to the Department's satisfaction one or more of the following
apply:
(1) The landowner denied the operator
access to the property upon which the structure is located to conduct a
premining survey or a postmining survey of the structure and surrounding
property, and thereafter the operator served notice upon the landowner by
certified mail or personal service. The operator shall demonstrate the
following:
(i) The notice identified the
rights established by sections 5.4-5.6 of The Bituminous Mine Subsidence and
Land Conservation Act (52 P. S. §§
1406.5d-1406.5f).
(ii) The landowner denied the operator access
to the site to conduct the survey within 10 days after the landowner's receipt
of the notice.
(2) The
operator's underground mining did not cause the damage.
(3) The operator and the landowner entered
into a voluntary agreement that satisfies the requirements of section 5.6 of
The Bituminous Mine Subsidence and Land Conservation Act.
(b) The relief in subsection (a)(1) will not
apply in the case of an EPACT structure if the landowner or the Department can
show, by a preponderance of evidence, that the damage resulted from the
operator's underground mining operations.
(c) The operator is not responsible for the
portion of structure damages which the operator can show, by a preponderance of
evidence, could have been prevented had the structure owner provided the
operator access to conduct a premining survey under §
89.142a and implement necessary
and prudent damage minimization measures.
Notes
The
provisions of this § 89.144a adopted June 12, 1998, effective
6/13/1998, 28 Pa.B. 2761;
amended October 21, 2005, effective 10/22/2005, 35 Pa.B.
5775.
The provisions of this § 89.144a 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superseded sections 5.1(b), 5.2(g)-(h), 5.4(a)(3) and (c) and 5.5(b) of the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).
This section cited in 25 Pa. Code §
89.142a (relating to subsidence
control: performance standards).
