The opinion
[J-77A&B-2013]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
DEPARTMENT OF ENVIRONMENTAL : No. 4 WAP 2013
PROTECTION, :
:
Appellant : Appeal from the Order of the
: Commonwealth Court entered
v. : September 20, 2011 at No. 495 CD
: 2010 affirming the Order of
CUMBERLAND COAL RESOURCES, LP : Environmental Hearing Board entered
AND AMFIRE MINING CO., LLC, : March 16, 2010 at Nos. 2009-068-L,
: 2009-069-L, 2009-070-L, 2009-071-L,
Appellees : 2009-072-L, 2009-082-L, 2009-139-L,
: 2009-140-L.
DEPARTMENT OF ENVIRONMENTAL :
PROTECTION, : No. 5 WAP 2013
:
Appellant : Appeal from the Order of the
: Commonwealth Court entered
v. : September 20, 2011 at No. 764 CD
: 2010, affirming the Order of
EMERALD COAL RESOURCES, LP AND : Environmental Hearing Board entered
CUMBERLAND COAL RECOURCES, LP, : March 30, 2010 at Nos. 2009-023-L,
: 2009-040-L.
Appellees :
:
ARGUED: October 15, 2013
CONCURRING OPINION
MR. JUSTICE SAYLOR DECIDED: SEPTEMBER 24, 2014
I join the majority opinion as it relates to the “accidents” question.
With respect to the Department’s compliance orders pertaining to placement of
portable fire extinguishers on scoops to supplement their existing automatic fire
protection systems, I agree with the majority’s conclusion that scoops are not
locomotives, mantrip cars, or personnel carriers under Section 273(f) of the Mine Safety
Act. See Majority Opinion, slip op. at 29-30. My only reservation about the majority’s
reasoning concerns its breadth relative to the Department’s wider array of powers. See
id. at 31 (“[T]he DEP’s suggestion that, simply because it is safety related, it can require
fire extinguishers on all vehicles, even if they are not statutorily required, would be to
arrogate a power without a statutory basis, making it virtually impossible for a mine
owner to reasonably understand what is required of it so as to comply with the law, and
to raise the specter of constitutional infirmity on the basis of vagueness.”). Left to my
own devices, I would confine the present discussion more closely to the factual scenario
at hand, entailing the Department’s issuance of notices of violation expressly predicated
on an incorrect interpretation of a statute.
I realize that the Department suggests, as an alternative to its position on
statutory construction, that we can disregard the specific grounds for its compliance
orders which are plainly stated on the face of each, see R.R. 101a-107a (reflecting that
each compliance order specifies Section 273 as the basis for the relevant violation), and
treat such orders as a general exercise of the agency’s broader powers to effectuate the
purposes of the Mine Safety Act and advance safety. However, I would simply decline
to proceed beyond the matters at hand in such a fashion. In this regard, I would
suggest that some underlying source of authority must precede a violation, whether this
may be a statute, regulation, or other form of valid administrative prescription or
pronouncement.
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