Department of Environmental Protection v. Cumberland Coal Resources, LP

[J-77A&B-2013]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.

DEPARTMENT OF ENVIRONMENTAL : No. 4 WAP 2013
PROTECTION, :
: Appeal from the Order of the
Appellant : Commonwealth Court entered September
: 20, 2011 at No. 495 CD 2010, affirming
: the Order of Environmental Hearing Board
v. : entered March 16, 2010 at Nos. 2009-068-
: L, 2009-069-L, 2009-070-L, 2009-071-L,
: 2009-072-L, 2009-082-L, 2009-139-L,
CUMBERLAND COAL RESOURCES, LP : 2009-140-L.
AND AMFIRE MINING CO., LLC, :
: ARGUED: October 15, 2013
Appellees :

DEPARTMENT OF ENVIRONMENTAL : No. 5 WAP 2013
PROTECTION, :
: Appeal from the Order of the
Appellant : Commonwealth Court entered September
: 20, 2011 at No. 764 CD 2010, affirming
: the Order of Environmental Hearing Board
v. : entered March 30, 2010 at Nos. 2009-023-
: L, 2009-040-L.
:
EMERALD COAL RESOURCES, LP AND : ARGUED: October 15, 2013
CUMBERLAND COAL RESOURCES, LP, :
:
Appellees :
:

OPINION

MADAME JUSTICE TODD DECIDED: SEPTEMBER 24, 2014

In this appeal by allowance, we consider, inter alia, the scope of the authority of

the Department of Environmental Protection (“DEP”) to issue administrative orders
under the Bituminous Coal Mine Safety Act.1 For the reasons that follow, we find that

the DEP acted within its authority with respect to the orders it issued regarding certain

failures to report accidents, but that it improperly issued other orders with respect to

requiring fire extinguishers on certain mining vehicles. Thus, we reverse in part, and

affirm in part, the order of the Commonwealth Court.

Before we consider the specifics of this appeal, a brief overview of the law

concerning mine safety in our Commonwealth is in order. Historically, and not

surprisingly, the mining of underground coal in Pennsylvania has been widely

considered a dangerous endeavor. While significant improvements in mining safety

have been achieved over the years, the recent events at the 2002 Quecreek Mine

accident in Somerset County Pennsylvania, where nine miners were trapped for three

days in a flooded mine shaft, made manifest the continued perilousness of mining.

While the federal government regulates mining in Pennsylvania through the Mine Safety

and Health Administration Act, as amended by the Mine Improvement Emergency

Response Act,2 state governments are permitted to regulate mining as well, and our

Commonwealth has done so for over 100 years.

Specifically, the progenitor of Pennsylvania’s Bituminous Coal Mine Safety Act,

entitled the Bituminous Coal Mine Act, was originally codified in 1883. The most recent

version of the statute was drafted in 1961 and constituted the first comprehensive

mining legislation designed to regulate mining safety practices. The 1961 version of the

Act included various provisions concerning safety, including inspectors being tasked

1
Act of July 7, 2008, P.L. 654, No. 55, 52 P.S. §§ 690-101 to 690-708.
2
30 U.S.C. § 801-878.

[J-77A&B-2013] - 2
with inspecting mines on a regular basis, with the ultimate purpose being to protect the

health and safety of miners.

In 2008, after years of work among industry, workers, and government

representatives, the retitled “Bituminous Coal Mine Safety Act of 2008” (“Mine Safety

Act” or “Act”), at issue herein, was unanimously enacted by the General Assembly.

Stressing the theme of the statute, the legislature’s findings declared that the “first

priority and concern of all in the bituminous coal mining industry must be the health and

safety of those who work in and at mines and others in and about mines.” 52 P.S. §

690-103(a)(1). Consistent therewith, the General Assembly added to the multiple

declared purposes of the Act, including “[t]o use the full extent of the Commonwealth’s

powers to protect the lives, health and safety of miners and others in and about

underground bituminous coal mines.” Id. § 690-103(b)(1).

Three aspects of the recent legislation are particularly noteworthy for purposes of

the matter before us. First, pursuant to Section 109 of the Mine Safety Act, mine

operators must notify the DEP of “accidents” that occur at their mines, within 15 minutes

of the discovery of the accident. 52 P.S. § 690-109(a)(1). Unlike its predecessor, the

Act provides a broad definition to the operative term “accident” as follows:

“Accident.” An unanticipated event, including any of the
following:
(1) A death of an individual at a mine.
(2) An injury to an individual at a mine, which has a
reasonable potential to cause death.
(3) An entrapment of an individual at a mine which has a
reasonable potential to cause death or serious injury.
(4) An unplanned inundation of a mine by a liquid or a gas.
(5) An unplanned ignition or explosion of gas or dust.

[J-77A&B-2013] - 3
 (6) An unplanned mine fire not extinguished within ten
minutes of discovery.
(7) An unplanned ignition or explosion of a blasting agent
or an explosive.
(8) An unplanned roof fall at or above the anchorage zone
in active workings where roof bolts are in use.
(9) An unplanned roof or rib fall in active workings that
impairs ventilation or impedes passage.
(10) A coal or rock outburst that causes withdrawal of
miners or which disrupts regular mining activity for more than
one hour.
(11) An unstable condition at an impoundment or refuse pile
which does any of the following:
(i) Requires emergency action in order to prevent
failure.
(ii) Causes individuals to evacuate an area.
(12) Failure of an impoundment or refuse pile.
(13) Damage to hoisting equipment in a shaft or slope which
endangers an individual or which interferes with use of the
equipment for more than 30 minutes.
(14) An event at a mine which causes death or bodily injury
to an individual not at the mine at the time the event occurs.
52 P.S. § 690-104.

Second, the Mine Safety Act requires certain vehicles to carry portable fire

extinguishers. Specifically, “[e]ach track or off-track locomotive, self-propelled mantrip

car or personnel carrier shall be equipped with one portable fire extinguisher.” 52 P.S.

§ 690-273(f).

Third, the Act created the Board of Coal Mine Safety (“Safety Board” or “Board”),

which was established to provide the means to rapidly respond to changes in mining

technology and conditions. 52 P.S. § 690-106. The Board, comprised of seven

members representing the DEP, workers, and owner/operators, is given the authority to

[J-77A&B-2013] - 4
write amendments to interim mandatory safety standards, as well as promulgate new

mine safety regulations.

With this history and relevant legal background in hand, we turn to the facts

underlying this appeal, which are largely undisputed and involve alleged violations of

the Mine Safety Act at mines in the southwestern part of the Commonwealth. The

instant case arises out of several orders issued by the DEP to Appellees as a result of

Appellees’ alleged failure to report various incidents that purportedly compromised the

safety of their mines — i.e., the alleged failure to report an “accident” — as well as

Appellees’ alleged failure to maintain proper fire protection equipment. We first

consider the charges of a failure to report an “accident.”

Appellee Emerald Coal Resources L.P. (“Emerald”) engages in underground

bituminous coal mining at its Emerald Mine in Wayne Township, Greene County,

Pennsylvania. On January 19, 2009, at approximately 10:00 p.m., a crew of miners

working in the B-7 section of the operation mined through into the adjoining B-6 section.

A plan for the cut through had been prepared and a mine examiner was to be sent and

stationed at the B-6 section to wait for and listen for the approach of the mining crew in

the B-7 section. The plan also required the mine examiner to close two doors that the

company had erected for the purpose of maintaining safe ventilation in the mine

following the cut through. Although the mine examiner went to the B-6 area, he did not

remain there, and the doors stood open at the time of the cut through. Due to the doors

remaining open, the ventilation in the area was affected. Specifically, a witness to the

cut through felt the air along a conveyer belt reverse, and he could feel the heat from

the feeder on his face. Additionally, a methane detector on a shuttle car sounded an

[J-77A&B-2013] - 5
alarm. Once certain protective measures were taken at the cut through, employees

entered the B-6 area and closed the doors, resulting in the ventilation returning to its

proper path.

Emerald did not notify the DEP of the incident. Thus, on January 30, 2009, the

DEP issued an administrative order for Emerald’s violation of Section 109 of the Mine

Safety Act for failing to report this “accident,” even though Section 104 does not list a

ventilation disruption as a specific reportable accident.

Appellee Cumberland Coal Resources L.P. (“Cumberland”) is the owner and

operator of Cumberland Mine in Waynesburg, Greene County, Pennsylvania. At

approximately 2:00 a.m. on February 12, 2009, an electrical storm resulted in a power

outage at its mine that caused a fan in the mine’s ventilation system to stop working.

The mine’s backup power system also failed to start after the loss of power, and, as a

result, the mine’s ventilation system at the No. 5 bleeder shaft was inoperable for over

16 minutes. The diesel powered back-up system, which should have automatically

been triggered, failed to operate. Ultimately, a fan monitoring system alerted surface

personnel of the stoppage, and an electrician restarted the fan. The Mine Safety Act

requires mine operators to evacuate the mine when a ventilation system is down for 15

minutes or more; however, such an event is not included in Section 104’s list of

“accidents” subject to reporting requirements. Cumberland did not notify the DEP of the

fan outage, and the DEP issued an administrative order for the violation.

Turning to the alleged fire equipment maintenance violations, as noted above,

the Mine Safety Act requires certain vehicles to contain portable fire extinguishers. The

DEP, interpreting “off-track locomotive” to include “scoops,” issued multiple

[J-77A&B-2013] - 6
administrative orders and notices of violation to both Cumberland and Appellee Amfire

Mining Co. (“Amfire”) for failing to equip their scoops with portable fire extinguishers in

violation of Section 273(f) of the Mine Safety Act. A scoop is a “battery-powered, four-

wheeled vehicle equipped with a bucket” used “to transport tools, materials, and coal”

throughout the mine. EHB Opinion, 3/16/10, at 2. Scoops have only one seat for the

operator’s use, and do not transport other miners. Id.

Emerald and Cumberland appealed their administrative orders to the

Environmental Hearing Board (“EHB”), arguing they were not required to report the

incidents that occurred at their mines because the incidents were not “accidents” as

contemplated by Section 104 of the Mine Safety Act. The EHB consolidated these two

cases, and the DEP moved for summary judgment, arguing the events occurring at both

mines did, in fact, constitute “accidents” under Section 104 that required reporting under

Section 109(a)(1).

Cumberland and Amfire also filed appeals to the EHB from the administrative

orders issued regarding their failure to provide fire extinguishers on scoops, which were

consolidated for review. The DEP and Cumberland/Amfire filed cross motions for

summary judgment concerning whether a scoop constitutes a “locomotive” under

Section 273(f) and whether the DEP had the authority under the Mine Safety Act to

issue orders requiring Cumberland and Amfire to supply fire extinguishers for scoops.

The EHB denied the DEP’s motions in both appeals. In the Emerald/Cumberland

matter, the EHB found the DEP lacked the authority to issue orders effectively

expanding Section 104’s list of “accidents” to include the incidents that occurred at the

Emerald and Cumberland mines. As to the Cumberland/Amfire matter, the EHB

[J-77A&B-2013] - 7
determined a scoop was not a “locomotive” within the meaning of Section 273(f), and,

thus, that the DEP erred in citing Cumberland and Amfire for violating the Mine Safety

Act. The DEP appealed both decisions to the Commonwealth Court.

The Commonwealth Court consolidated the appeals and affirmed. DEP v.

Cumberland Coal Resources, 29 A.3d 414 (Pa. Cmwlth. 2011). First, the court held

Emerald and Cumberland did not violate the reporting requirements of Section

109(a)(1). In reaching this conclusion, the court looked to the definition of “accident” in

Section 104 and noted the definition was subject to two different interpretations: the use

of the word “including” before the list of events could signify that the list was not

intended to be exclusive, and the use of the word “any” in the phrase “any of the

following” could mean that the General Assembly intended the list to be exclusive. As

such, the court determined Section 104 was ambiguous, and it deferred to the DEP’s

reasonable interpretation of the definition of “accident” as allowing additional events of

the same general kind or class as those expressly set forth in the list. The court

concluded, however, that the DEP could not expand this list through the adjudicatory

process, as the General Assembly vested the Safety Board with the authority to develop

the Mine Safety Act through rulemaking, and gave the DEP no such power.

Accordingly, the court opined that the DEP’s powers under the Mine Safety Act are

limited to enforcing the express provisions of the Act and any regulations promulgated

by the Safety Board. According to the court, were it to hold otherwise, the DEP could

expand the list of “accidents” on a case by case basis without giving mine operators any

advanced notice, effectively punishing operators for failing to act when they had no

reason to know action was required.

[J-77A&B-2013] - 8
 The court also rejected the DEP’s alternative argument that it had authority to

issue the administrative orders pursuant to its general enforcement powers under

Sections 105 and 501 of the Mine Safety Act. The court observed that Sections 105

and 501 contain no language giving the DEP authority to create rules and requirements

under the Act, and it further opined that the General Assembly would not have expressly

provided for an expedited reporting requirement for “accidents” in Section 109(a)(1) if it

also allowed the DEP to use its general enforcement powers under Sections 105 and

501 to impose a similar reporting requirement for events not included in the definition of

“accident.”

As to the issue of whether the DEP established that Cumberland and Amfire

violated Section 273(f) by failing to provide fire extinguishers for their scoops, the court

held the DEP’s interpretation of the term “locomotive” to include scoops was erroneous.

In so holding, the court noted the General Assembly did not define the term “locomotive”

in the Act, and it relied on both the technical and common dictionary definitions of

“locomotive,” which both define “locomotive” as a “powered vehicle used to move

nonpowered vehicles.” As scoops do not move nonpowered vehicles, the court agreed

with the EHB that they were not locomotives and, thus, not subject to the requirements

of Section 273(f). Additionally, for the same reasons the court held the DEP could not

rely on its enforcement powers to expand the list of “accidents” under the Act, the court

found the DEP also could not rely on its general enforcement powers under Sections

105 and 501 to require fire extinguishers to be placed on scoops.

Notably, Judge Pellegrini filed a vigorous dissent joined by Judges Leadbetter

and McCullough. Therein, Judge Pellegrini focused solely on the issue of the reporting

[J-77A&B-2013] - 9
requirements of Section 109, and disagreed with the majority’s conclusion that the DEP

was precluded from expanding the list of “accidents” in Section 104, as the Mine Safety

Act contained no language indicating that enforcement of the Act depended on the

Safety Board’s enactment of regulations. According to Judge Pellegrini, to hold

otherwise would allow the Safety Board to become a quasi-enforcement body, hindering

the enforcement of the Mine Safety Act and the safety of miners.

We granted allocatur in the consolidated appeals, in sum, to address the scope

of DEP’s authority to interpret the Mine Safety Act beyond its express provisions with

respect to the reporting of accidents and its authority to require portable fire

extinguishers on certain mining vehicles. As the issues on appeal are pure legal

questions, our standard of review is de novo, and our scope of review is plenary.

Buffalo Twp. v. Jones, 813 A.2d 659, 664 n.4 (Pa. 2002). Moreover, as the issues

overlap regarding the breadth of the DEP’s authority, we will consider the issues stated

above collectively.

The DEP first asserts that it acted under its authority as recognized by our

Court’s prior precedent when issuing its administrative orders in enforcing the Mine

Safety Act. Indeed, the DEP contends that this Court has consistently recognized that

administrative agencies possess both rulemaking and adjudicatory powers, citing Dept.

of Env. Res. v. Butler County Mushroom Farm, 454 A.2d 1 (Pa. 1982) and Pa. Human

Rel. Comm. v. Norristown Area Sch. Dist., 374 A.2d 671 (Pa. 1977).

[J-77A&B-2013] - 10
 The DEP develops that the situation sub judice is analogous to that in Butler

County, wherein its predecessor, the Department of Environmental Resources (“DER”),3

acting under the General Safety Law,4 issued an administrative order to the Butler

County Mushroom Farm after identifying a potential fire safety issue. Specifically, the

DEP offers that, in Butler County, during an inspection of the Mushroom Farm, the DER

noted a problem in tracking every person who was underground in the limestone mines

in which the mushrooms were grown. The DER observed that, while the Mushroom

Farm identified every hourly employee underground, it did not have a process to identify

supervisors, independent contractors, repairmen, or visitors, including high school

students on tours. This was critical to the DER, as, in the event of a fire, the absence of

individuals in the mines would allow rescuers to avoid embarking upon an unnecessary

and dangerous search and rescue mission. In response, the DER ordered the

Mushroom Farm to develop and implement a system to track all individuals in the

mines. The Mushroom Farm appealed the order to the EHB, contending the DER did

not have legal authority to issue such an order. While the EHB affirmed the issuance of

the order, on appeal, the Commonwealth Court reversed.

DEP points to our Court’s resolution of the issue in favor of the DER, noting that

the adjudicatory power was a customary and vital tool in the operation of administrative

agencies, that unforeseeable circumstances required flexibility, and that the choice of

3
The General Assembly changed the agency’s name from the DER to the DEP, created
a new agency, the Department of Conservation and Natural Resources (“DCNR”), and
assigned to the new agency some of the responsibilities which previously had been
assigned to the DER. Management of the Commonwealth’s state parks and forests
were the primary functions vested in the new DCNR. 71 P.S. § 340.101, et seq.
4
Act of May 18, 1937, P.L. 654, as amended, 43 P.S. §§ 25-1 et seq.

[J-77A&B-2013] - 11
proceeding by general rule or by individual ad hoc litigation was for the discretion of the

administrative agency. Butler County, 434 A.2d at 4 n.2. Although the text of the

General Safety Law spoke only of “instructions,” the DEP stresses that our Court

nevertheless concluded that the statute authorized the issuance of the administrative

orders. Indeed, the DEP notes that our Court went further and held that the DER’s

ability to issue such orders extended beyond the borders of the statute itself. Id. at 8.

The DEP further points out that this Court in Butler County relied upon our prior

decision in Norristown Area, wherein we affirmed, in the context of ending school

segregation, that the Human Relations Commission could act by rule-making or on a

case-by-case basis through litigation. The DEP emphasizes that our Court held that

there was no abuse of discretion on the part of the Commission by choosing to proceed

to remedy segregation through adjudication proceedings.

The DEP maintains that it relied upon this precedent to issue the administrative

orders in the matters before us, and that both mandating reporting to the DEP about life

endangering mining incidents, and requiring fire extinguishers on scoops, were

consistent with and furthered the purposes of the Mine Safety Act. Indeed, the DEP

submits that it was merely interpreting a statute that it is responsible for implementing,

and, with respect to reporting, a statute that contains a non-exhaustive list of already

existing statutory requirements.

The DEP further challenges what it regards as the Commonwealth Court’s overly

restrictive construction of the Mine Safety Act, arguing that it is both contrary to the plain

language of the statute and the General Assembly’s intent to modernize the

Commonwealth’s mine safety laws. Specifically, the DEP cites Section 105, which

[J-77A&B-2013] - 12
grants to the DEP the “power and the duty to administer a mine safety program for

individuals employed at mines,” including the power to “[i]ssue orders to implement and

enforce the provisions of this act.” 52 P.S. § 690-105(1), (3). The DEP contends this is

one of the many enumerated powers and duties conferred on the DEP as part of its

overall power and duty to administer the mine safety program. Even more broadly, the

DEP points to its power to issue written orders “to enforce this act, to effectuate the

purposes of this act and to protect the health and safety of miners and individuals in and

about mines.” 52 P.S. § 690-501(a). Thus, according to the DEP, the express and

expansive authority conferred by the Mine Safety Act upon the DEP allows it to issue

administrative orders requiring actions not specifically expressed by statute that

promote safety.

Building on this argument, the DEP maintains that the General Assembly

substantially re-wrote the prior existing law, created the Safety Board to promulgate

regulations, and empowered the DEP to issue orders to protect miner safety. The DEP

submits that the Act contains nothing that would suggest the Safety Board’s authority to

promulgate regulations dilutes the DEP’s adjudicatory authority under the Act, and

contends that both provisions should be given full force and effect to protect the “lives,

health and safety of miners and others in and about underground bituminous coal

mines.” 52 P.S. § 690-103(1).

The DEP further avers that it is its interpretation of the Mine Safety Act,

permitting it to issue administrative orders for incidents not expressly provided for in the

Act, that is entitled to deference. According to the DEP, the Safety Board is the

“administrative legislative branch” which enacts regulations, but it is the DEP which

[J-77A&B-2013] - 13
possesses specialized knowledge of, and the greatest practical experience with, mine

safety issues. The DEP asserts it interpreted and applied the Mine Safety Act to the

incidents at issue, in light of the expansive definition of the statutory term “accident” and

the requirement to provide notice to the DEP. In concluding that the mine operators

should have provided notice of the incidents at issue, the DEP reasons that it was

merely exercising its prerogative to interpret the statute as it deemed appropriate, as

long as that interpretation is consistent with the Mine Safety Act. Similarly, DEP asserts

that it reasonably determined that scoops fell within the term “off-track locomotive”

under the Mine Safety Act and ordered operators to equip such vehicles with fire

extinguishers.

The DEP also offers various tenets of statutory construction in support of its

position. Specifically, the DEP points out that the General Assembly is presumed to

intend that all provisions in a statute are to be given effect, citing 1 Pa.C.S.A.

§§ 1921(a), 1922(2). Here, it notes Section 106 of the Act empowers the Safety Board

to promulgate appropriate regulations to protect the health and safety of miners and

others, and consistent therewith, Section 501 of the Act empowers the DEP to issue

written orders.

In response, Appellees’ primary contention is that the Commonwealth Court

properly determined that the DEP was without authority under Section 501 and 105 of

the Mine Safety Act to issue administrative orders that had the effect of creating new

events constituting “accidents” under Section 104. Stated another way, Appellees

maintain that the definition of “accidents” in Section 104 of the Mine Safety Act is

exhaustive and the DEP cannot expand the listing of events contained therein.

[J-77A&B-2013] - 14
 Appellees offer that the General Assembly bifurcated the compliance and

rulemaking functions under the Mine Safety Act, as Section 106.1 explicitly vested the

Safety Board with broad rulemaking authority, and reserved implementation and

enforcement powers to the DEP under Sections 105 and 501. According to Appellees,

if the DEP were able to, in essence, engage in rulemaking as well as issue

administrative orders, it would undermine the legislature’s intent to grant sole

rulemaking power to the Safety Board, and would make the Safety Board’s rulemaking

powers superfluous and redundant.

Appellees contend that not only does the DEP lack authority to issue

administrative orders expanding the requirements of the Act, but that the DEP offers no

effort to define or limit the scope of this “catch-all” authority. This, Appellees stress, is

markedly unfair, given the criminal and civil penalties that accompany a violation of the

Mine Safety Act and results in an ad hoc process in which the mine operator would

have no notice of the statute’s requirements and anticipating its reporting requirements.

Appellees urge that this is especially true where the rule requires reporting an event

within 15 minutes of an accident. Indeed, Appellees submit that a general authority

given to DEP based upon an obligation to protect “health and safety” of miners, without

any specific meaning, would prevent a mine operator from being proactive in complying

with the Act.

Appellees also offer our decision in Pa. State Bd. of Pharm. v. Cohen, 292 A.2d

277 (Pa. 1972), in which our Court considered a pharmacist’s appeal of the suspension

of his license by the Board of Pharmacy for “grossly unprofessional conduct” under the

Pharmacy Act. While not violating any of the specifically enumerated grounds that

[J-77A&B-2013] - 15
constituted “grossly unprofessional conduct,” the Board of Pharmacy nevertheless took

the position that such prohibitions were not intended to be exclusive, but only an

exemplary description of the prohibited conduct which served as guidance to the Board.

Appellees point out that our Court rejected such a claim of expansive powers, instead

limiting the meaning of “gross unprofessional conduct” to those listed in the statute.

Cohen, 292 A.2d at 280-81. Appellees argue that the DEP should defer to the Board’s

rulemaking powers to clarify which events constituted “accidents,” and what equipment

must be provided with fire extinguishers. Further, Appellees distinguish Butler County

and Norristown Area as being factually unique and arising in the context of statutes that

did not delegate rulemaking authority to a board. According to Appellees, the DEP is

improperly trying to prescribe general rules of conduct via adjudication, yet, the line of

demarcation between rulemaking and enforcement under the Mine Safety Act prohibits

the DEP’s approach.

Further, Appellees maintain that, in the event that this Court finds that Section

104 is not exclusive, and the General Assembly intended to grant unlimited power to the

DEP, such a grant of “catch-all” power would be unconstitutional, as an impermissible

delegation of legislative power in violation of Pa. Const. art. 2, § 1. According to

Appellees, the DEP in this instance is acting as a super-legislature and in a fashion

contrary to what the legislature intended when creating the Board. Appellees urge that

this is true for the DEP’s expansion of what constitutes an “accident,” as well as its

decision to require fire extinguishers on scoops. Similarly, Appellees make a

constitutional argument that any application of “catch-all” authority is unconstitutionally

[J-77A&B-2013] - 16
vague, as the requirements would be uncertain and ambiguous, rendering compliance

impossible.

Appellees also present a statutory construction analysis. They offer that the

Mine Safety Act, because it imposes criminal and civil penalties for non-compliance,

must be strictly construed against the Commonwealth; accordingly, they contend the

immediate reporting requirements must be limited to the events enumerated in Section

104. Appellees again emphasize that, if DEP had the power to expand reporting

requirements, mine operators would be left in a state of uncertainty as to when to

provide the DEP notice. Addressing the expansive phrase “including any of the

following” with respect to enumerated events that constitute accidents, Appellees turn to

Black’s Law Dictionary and assert that the term “including” may expand a meaning, but

also may merely specify a particular thing already included within general words already

used. Pointing to the prior mine safety statute, Appellees vaguely offer that a policy

issued pursuant to that statute listed 14 events requiring notification, and, although not

identical to those contained in the present statute, the policy spoke to two events not

included in the statute, one relating to ventilation interruptions and one regarding

unplanned connections into abandoned workings. These two events, as noted by

Appellees, were not included in the 2008 version of the Mine Safety Act and, according

to Appellees, this omission indicates that the legislature did not intend the statute to

include these circumstances as reportable accidents.

Appellees also offer that the General Assembly adopted the federal regulatory list

of accident notifications, limited to the 14 enumerated events as prescribed by federal

law. Appellees claim, because the state statute was patterned after the federal law, the

[J-77A&B-2013] - 17
two should be construed together. Construing the two statutes together, Appellees

point out that the only difference between the statutes is the prefatory language that an

accident was an “unanticipated event, including any of the following.” According to

Appellees, as noted above, this additional text does not change the meaning of the

statute, and that it is merely consistent with limiting the definition to events prescribed

by federal law.

Finally, with respect to the requirement of fire extinguishers on scoops, Appellees

point out that, under Section 273(f) of the Mine Safety Act, operators are required to

equip locomotives, self-propelled mantrip cars, and personnel carriers with one portable

fire extinguisher. Appellees offer that scoops, like numerous other self-propelled

vehicles used in mining that are equipped with fire suppression systems, are excluded

from this requirement; however, the DEP contends that they are “off-track locomotives”

and, thus, required to carry fire extinguishers. According to Appellees, scoops are not

locomotives, as they are not merely engines used for pulling, but are equipped with a

bucket for scooping material off the mine floor. Further, Appellees note that personnel

carriers and mantrips are used to move individuals in and out of the mines, but a scoop

has a single operator with no seats for passengers. Thus, Appellees argue that Section

273(f) simply does not support the DEP’s position that a scoop must carry a fire

extinguisher, and any attempts to require such equipment on that vehicle requires

rulemaking. Finally, Appellees contend that the DEP is entitled to no deference in its

interpretation of the Mine Safety Act, as the language is clear that scoops are not the

type of vehicle required to carry portable fire extinguishers. That being the case,

[J-77A&B-2013] - 18
Appellees assert that the unambiguous expressed intent of the legislature must be

given effect.

With the arguments of the parties in hand, we turn to the jurisprudential principles

underlying our review. Specifically, the primary focus of the parties is on the terms of

the Mine Safety Act. Thus, we necessarily turn to the Statutory Construction Act. 1

Pa.C.S.A. §§ 1501 et seq. Pursuant to that Act, the objective of all interpretation and

construction of statutes is to ascertain and effectuate the intention of the General

Assembly. Id. § 1921(a). The best indication of the legislature’s intent is the plain

language of the statute. When considering statutory language, “[w]ords and phrases

shall be construed according to rules of grammar and according to their common and

approved usage.” Id. § 1903(a). Further, when the words of a statute are clear and

unambiguous, there is no need to go beyond the plain meaning of the language of the

statute “under the pretext of pursuing its spirit.” Id. § 1921(b). Thus, only when the

words of a statute are ambiguous should a reviewing court seek to ascertain the intent

of the General Assembly through considerations of the various factors found in Section

1921(c). Id. § 1921(c); see generally Bayada Nurses Inc. v. Com. Dept. Labor and

Indus., 8 A.3d 866, 880-81 (Pa. 2010). Finally, an administrative agency’s interpretation

of a governing statute is to be given controlling weight, unless that interpretation is

clearly erroneous. Whitaker Borough v. PLRB, 729 A.2d 1109, 1110 (Pa. 1999).

We first consider the issue of whether the DEP acted within its authority with

respect to the administrative orders issued regarding the mine operators’ failure to

report certain accidents.

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 As noted above, the DEP asserts that it has broad authority to protect miner

health and safety. The Mine Safety Act empowers it to “administer a mine safety

program for individuals employed at mines” and to “[i]ssue orders to implement and

enforce the provisions of this act.” 52 P.S. § 690-105(a), (a)(3). Traditionally,

administrative agencies enjoy wide latitude in implementing, interpreting, and enforcing

their statutory mandate. Moreover, pursuant to the Mine Safety Act, the DEP is

expressly charged with certain safety-related responsibilities and enjoys broad powers

in fulfilling its mission in this regard.

Yet, we need not speak to the breadth of, or limitations on, this general authority

to determine this matter. The parties do not dispute that administrative agencies have

authority to interpret their guiding statute and that they may enforce that enactment’s

provisions. Thus, we are able to resolve the issue of whether the DEP properly issued

its orders regarding a failure to report certain accidents on the more narrow grounds of

whether the DEP properly interpreted the relevant statutory reporting language

contained in the Act.

To determine the General Assembly’s intent in this regard, we first look to the

express statutory language in question. Pursuant to Section 109 of the Mine Safety Act,

mine operators must notify the DEP of “accidents” that occur at their mines, within 15

minutes of the discovery of the accident. 52 P.S. § 690-109(a)(1). Turning to the

definition of “accident,” Section 104 describes an accident as an “unanticipated event,

including any of the following . . . .” 52 P.S. § 690-104. Fourteen types of unanticipated

events follow this introductory phrase, as set forth above.

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 The focus of the precise controversy here centers upon the meaning of the

phrases “unanticipated event” and “including any of the following.” In sum, the DEP

claims this language to be expansive, and includes not only the specifically expressed

unintended events, but other unanticipated incidents outside of the list as well, while

Appellees assert that the 14 unanticipated events are exhaustive — i.e., that they are

the only events which can constitute an “accident” for purposes of the DEP’s

enforcement.

Initially, we note the definition of “accident” begins with the generic reference to

an “unanticipated event.” If the General Assembly had intended to limit reportable

“accidents” to the 14 listed events, there would have been no need for the definition to

first state that an “accident” is an “unanticipated event.” Indeed, all of the prefatory

language to the 14 examples would be surplusage under the Appellees’ interpretation of

Section 104. Conversely, by employing the phrase “unanticipated event,” the legislature

rendered the understanding of “accident” to be broad in scope and meaning.

Turning to the next phrase, it is widely accepted that general expressions such

as “including,” or “including but not limited to,” that precede a specific list of included

items are to be considered as words of enlargement and not limitation. Pa. Human Rel.

Comm. v. Alto-Rest Park Cemetery Ass’n., 306 A.2d 881, 885 (Pa. 1973). Indeed, such

a list of specific items is not meant to be exclusive of all items other than those

specifically named. Id. Yet, these terms also should not be construed in their widest

context. Under our venerable statutory construction doctrine of ejusdem generis (“of the

same kind or class”), where specific terms setting forth enumeration of particular

classes of persons or things follow general terms, the general words will be construed

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as applicable only to persons or things of the same general nature or class as those

enumerated. See Steele v. Statesman Ins. Co., 607 A.2d 742, 743 (Pa. 1992); Summit

House Condominium v. Commonwealth, 523 A.2d 333, 336 (Pa. 1987); Breininger v.

Sheet Metal Workers Int’l. Ass’n. Loc. Union No. 6, 493 U.S. 67, 91-92 (1989). In sum,

the presence of such a term as “including” in a definition exhibits a legislative intent that

the list that follows is not an exhaustive list of items that fall within the definition; yet, any

additional matters purportedly falling within the definition, but that are not express, must

be similar to those listed by the legislature and of the same general class or nature.

Further, contrary to Appellants’ assertions, we find that the term “any,” as used in the

phrase “including any of the following” does not place a limitation on the definition, but,

rather, sharpens the point that the list of 14 events is not exhaustive, but merely

included as the type of events that may constitute an accident.

With these preliminary interpretations in mind, we turn to consideration of the 14

matters set forth in Section 104. These occurrences include unanticipated events such

as death, serious injury, entrapment of an individual with reasonable potential for

serious injury, inundation of a mine by liquid or gas, unplanned ignition or explosion of

gas or dust, unplanned roof fall that impairs ventilation, an unstable condition requiring

emergency action, and damage to hoisting equipment which endangers an individual or

interferes with the use of equipment for more than 30 minutes. As is clear from this list,

the unanticipated events contained in Section 104 all share the common thread of fairly

serious unplanned incidents that potentially pose a serious risk to miners and other

individuals’ health, safety, or life. Thus, as the DEP has the power to interpret and

enforce the Mine Safety Act, the DEP has the authority to issue administrative orders for

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a failure to report unanticipated events if they may be regarded as of the same general

class or nature as those expressly set forth in Section 104 — i.e., those involving fairly

serious incidents potentially impacting the miner or other individual’s health, safety, or

life.

Thus, the question then becomes whether the unplanned changes in ventilation

flow and a power failure resulting in an inoperable ventilation system are substantially

similar and of the same general class as the expressly listed examples of an unplanned

event constituting an “accident.” We believe these unanticipated circumstances

occurring at the Emerald and Cumberland Mines fit comfortably in this class of events.

As noted by the EHB, Emerald did not dispute the DEP’s contention that the incident at

its mine caused a potential threat to the health and safety of the miners. EHB Opinion,

2/24/2010 at 2. Indeed, at the Emerald Mine, the change in ventilation was

accompanied by a methane detector being activated. Moreover, with respect to the

Cumberland Mine, the EHB explained “there is no dispute that the loss of ventilation

caused by the malfunctioning equipment posed a potential threat to the health and

safety of miners, not only directly as a result of the disruption in air flow, but indirectly as

a result of the need to commence an evacuation of numerous miners over long

distances on foot.” Id. at 3.

Because the accidents alleged by the DEP involving changes in, and cessation

of, air flow to miners were of the same general class and similar to the unanticipated

events incidents listed in Section 104, we have no hesitation concluding that, based

upon the plain language of Section 104, the DEP was within its authority to issue the

administrative orders regarding Appellees’ failure to report these unanticipated events.

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Moreover, our conclusion is made in the light of an administrative agency’s

interpretation of a governing statute enjoying controlling weight, as noted above, unless

clearly erroneous.

Appellees’ protestations to the contrary are without merit. Specifically, Appellees’

position is that, by interpreting Section 104 to include events beyond those expressly

listed, the DEP engaged in rulemaking, and, if permitted, would make the Safety

Board’s rulemaking powers superfluous. Appellees’ argument is overstated. Our

conclusion that the DEP properly has the authority to interpret and enforce the Mine

Safety Act with respect to the reporting of accidents refutes Appellees’ contention that it

engaged in unlawful rulemaking in contravention to the rulemaking functions of the

Safety Board. The DEP’s interpretation of its governing statute and enforcement of a

broad statutory directive is not rulemaking. Moreover, while Section 106.1 of the Act

vests the Safety Board with rulemaking powers, permitting the DEP to engage in

traditional interpretation and enforcement responsibilities, based upon statutory

authority, would not render the Safety Board’s rulemaking powers superfluous or

redundant, as the Board could, consistent with its statutory powers, promulgate new

rules or amend existing ones. Nor does it avoid or undermine the legislature’s construct

for rulemaking through the Safety Board. Indeed, every statute should be construed, if

possible, to give effect to all of its provisions, 1 Pa.C.S.A. § 1921(a), and the legislature

intends for the entire statute to be effective and certain, id. § 1922(2). Here, there is no

indication that the General Assembly intended that enforcement of the Mine Safety Act

was solely dependent upon the Safety Board’s promulgation of regulations, and there is

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no evidence of a concomitant legislative intent to strip the DEP of its traditional

interpretive and enforcement powers. See Butler County; Norristown Area.

Our determination that both the DEP and the Safety Board are authorized to act

to protect the health and safety of miners — through interpretation and enforcement,

and by rulemaking, respectively — is consistent with these principles. The protection of

miners under the Act may be through enforcement of reasonably interpreted statutory

requirements and through the formal promulgation of regulations, and both methods

support the overarching and laudable purposes of the Mine Safety Act. Moreover, the

authority conferred upon each of these entities does not mean a diminution in the

powers of the other. Thus, we reject Appellees’ assertion that the DEP’s actions are, in

essence, preempted by the regulation promulgation powers of the Safety Board.

Further, Appellees contend federal mine safety regulation, through the federal

Mine Safety and Health Act, as amended by the Mine Improvement and New

Emergency Response Act, is limited to the enumerated events and that our statute was

based upon that law. Thus, we compare the federal mine safety statute with our

Commonwealth’s Mine Safety Act.

The federal definition is limited, and offers that “accident means” one of 12 listed

items. 30 CFR § 50.2(h). By its express terms, Pennsylvania’s Mine Safety Act’s

definition is clearly broader, including in the definition that the matter be an

“unanticipated event,” and, more importantly, using the above-stated broadening

verbiage, “including any of the following.” While Appellees claim that the Mine Safety

Act is based upon the federal statute, and should be limited to the enumerated items

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contained therein, the express words of the Mine Safety Act command a different

conclusion.5

Also, as noted above, Appellees offer somewhat cursory arguments that

embracing the DEP’s interpretation of Section 104 would constitute an unconstitutional

delegation of legislative power and would render the statute unconstitutionally vague.

We disagree.

The legislature may not constitutionally delegate its power to make, alter, and

repeal laws to other branches of government or to any other body or authority. It may,

however, delegate authority and discretion in connection with the execution and

administration of its law, and it may establish primary guidelines and bestow upon

others the duty to carry out declared legislative policy in accordance with the general

provisions of the enabling legislation. The touchstone of such delegation is that it is for

the General Assembly to make basic policy choices. Pennsylvanians Against Gambling

Expansion Fund v. Commonwealth, 877 A.2d 383, 417 (Pa. 2005). In determining

whether the legislature has established adequate standards, a court must consider the

language of the statute, the underlying purpose of the statute, and its reasonable effect.

Blackwell v. State Ethics Comm’n., 567 A.2d 630, 636-37 (Pa. 1989).

5
Appellees’ reliance upon our decision in Cohen, supra, fails for the same reason. In
that matter, a pharmacist’s license was suspended for “grossly unprofessional conduct.”
63 P.S. § 390-5(a)(9). Under the Pharmacy Act, “grossly unprofessional conduct”
consisted of 13 specific prohibitions. The statutory provision, unlike the section at issue
in this appeal, was limited to certain specifically enumerated grounds, and did not
include any broadening language. Our Court reasoned that the legislature specifically
intended to define “grossly unprofessional conduct” by the 13 enumerated grounds,
and, thus, the State Board of Pharmacy could not expand that definition in the absence
of statute or rule. Cohen, 292 A.2d at 282-83.

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 We find that the statutory language employed by the General Assembly explains

in sufficient detail the type of unanticipated events which constitute reportable accidents

under the Mine Safety Act. It reflects not only basic policy choices, but a specifically

articulated class of events which must be reported to the DEP. Further, this

understanding of the definition of “accident” is entirely consistent with the underlying

purpose of the Mine Safety Act, which could not be clearer: “[t]o use the full extent of

the Commonwealth’s powers to protect the lives, health and safety of miners and others

in and about underground bituminous coal mines.” 52 P.S. § 690-103(b)(1). Finally, the

reasonable effect of the statute is to place mine operators on reasonable notice of the

types of unanticipated events which constitute accidents, and which are reportable to

the DEP. In sum, Section 104, and the DEP’s interpretation thereof, does not

impermissibly delegate to the DEP basic legislative policy choices regarding mine

safety.

Further, we find that our interpretation today does not, as Appellees have argued,

render the Mine Safety Act unconstitutionally vague. Under a void-for-vagueness

challenge, a statute will be found unconstitutional only if the enactment is so vague that

persons of common intelligence must necessarily guess at its meaning and differ as to

its application. Commonwealth v. Cotto, 753 A.2d 217, 220 (Pa. 2000). A statute will

pass a vagueness attack if the statute defines the objectionable conduct “with sufficient

definiteness, that ordinary people can understand what conduct is prohibited and in a

manner that does not encourage arbitrary and discriminatory enforcement.”

Commonwealth v. Bullock, 913 A.2d 207, 212 (Pa. 2006). In essence, a statute must

give fair warning as to the conduct it penalizes.

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 In defining the term “accident,” the General Assembly has offered 14 examples of

the types of unanticipated events that it intended to be covered by the Act and subject

to its notice requirements. As noted above, all 14 examples are events which are fairly

serious incidents potentially impacting the miner or other individual’s health, safety, or

life. Contrary to Appellees’ assertion that mine operators will be left in a state of

uncertainty, we find that these examples provide sufficient guidance and definiteness

regarding the nature of unanticipated events that constitute reportable accidents such

that ordinary individuals are able to understand what conduct is required to be reported,

and in our view, such statutory definition does not encourage arbitrary and

discriminatory enforcement. Commonwealth v. Davidson, 938 A.2d 198, 207 (Pa.

2007). Moreover, as offered by Judge Pellegrini in his dissenting opinion below, if a

byproduct of this broader understanding of reportable accidents is the over-reporting of

incidents in an abundance of caution, such effect will increase the safety of miners, an

outcome consistent with the overall purpose of the Act. Cumberland Coal Resources,

29 A.3d at 436 (Pellegrini, J. dissenting).

For all of the foregoing reasons, we find that the DEP acted within its statutory

authority when it issued the administrative orders regarding Appellees’ failure to report

the “accidents” at issue, as they were of the same general class or nature as those

expressly set forth in Section 104 — i.e., those involving fairly serious incidents

potentially impacting miner’s or other individual’s health, safety, or life. Thus, we

reverse the order of the Commonwealth Court on this issue.

We next turn to the DEP’s sanctioning of Appellees for a failure to comply with

Section 273 of the Mine Safety Act which requires a portable fire extinguisher for certain

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mining vehicles. Specifically, Section 273 requires that each “track or off-track

locomotive, self-propelled mantrip car or personnel carrier shall be equipped with one

portable fire extinguisher.” 52 P.S. § 690-273(f). The DEP considered the scoops at

issue in this appeal to be “off-track locomotives,” requiring a portable fire extinguisher.

Appellees, as noted above, refute this understanding and, instead, assert that a scoop,

which has a shovel, is used to remove coal, and is driven by a single individual, is not a

locomotive, as a locomotive pushes or pulls cars and a scoop does not. As a scoop is

not a locomotive, Appellees assert that the DEP was without authority to require a

portable fire extinguisher on such vehicles.

As with the prior issue on appeal, our initial focus in resolving this issue is on the

language employed by the legislature in the statute, in this instance, to determine if the

DEP erred in applying the portable fire extinguisher requirement to scoops. We note

that Section 273 is specific, limited in scope, and lacks any broader “including” language

found in Section 104. The provision lists three particular pieces of mining transportation

vehicles which require a portable fire extinguisher. Focusing on the term “locomotive,”

dictionaries commonly provide that a locomotive is a “self-propelled engine, now usually

electric or diesel-powered, that pulls or pushes freight or passenger cars on railroad

tracks.” American Heritage Dictionary of the English Language, Houghton Mifflin Morris

766 (ed. Boston 1996). Conversely, a “scoop” is a battery-powered, four wheel vehicle

with a single operator seat that is equipped with a bucket and used in underground

mines to transport tools, materials, and coal from one location to another in the mine; it

does not pull or push anything. Scoops are used daily and travel throughout a mine.

R.R. 98a. While, generally, scoops are equipped with fire suppression systems, the

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scoop battery, which is large and can accumulate coal dust, is not protected by a fire

suppression system. Id. We also note that the other vehicles listed — a mantrip car

and personnel carriers — just as the terms connote, are vehicles used for shuttling and

carrying miners, and scoops are neither used to transport miners nor pull cars of

supplies or coal.

By its plain and narrow language, the statutory portable fire extinguisher

requirement is limited to three statutorily enumerated types of vehicles, none of which

specifically include, or could reasonably be understood to include, a scoop or scoop-like

vehicle. A scoop does not pull or push freight or passenger cars. Nor does a scoop

move individuals in and out of a mine, like a mantrip car or personnel carrier, as a scoop

has a single operator seat with no room for passengers. Indeed, consistent with our

discussion above regarding the definition of “accident,” if a scoop were substantially

similar to these vehicles, or in the same general class, the DEP’s interpretation may

have more validity; but to interpret the definition of “locomotive” to include a scoop

would be to stretch the plain meaning of the term used by the General Assembly

beyond the breaking point. Consistent with the limited statutory language delineating

the specific types of vehicles encompassed by this statutory provision, we find that

scoops fall outside of the requirements of Section 273. While an administrative

agency’s interpretation of a governing statute is to be given controlling weight, there are

limitations, and here, based upon the plain language of the statute, the DEP’s

interpretation of Section 273 was clearly erroneous. Whitaker Borough, supra.

The DEP hinted as much in its argument before the Commonwealth Court,

wherein it took the position that a scoop was a locomotive, but nevertheless suggested

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that, even if not a locomotive, because mandating fire extinguishers is safety related, it

was a permissible exercise of its authority. The DEP points to Section 501 of the Act

which permits the DEP to “effectuate the purposes of this act and to protect the health

and safety of miners and individuals in and about mines.” 52 P.S. § 690-501.

According to the DEP, this section, pertaining to enforcement powers and remedies,

expands upon the already broad powers enjoyed by the DEP and allows it to issue

orders to mine operators to perform actions not contemplated by statute or regulation

for the purpose of promoting miner safety. We do not doubt that the DEP enjoys broad

powers to carry out the laudable and essential purposes of the Mine Safety Act, and,

more specifically, that requiring a portable fire extinguisher to be carried by scoops may

be exceedingly prudent; however, the 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, make it virtually

impossible for a mine operator to reasonably understand what was required of it so as

to comply with the law, and to raise the specter of constitutional infirmity on the basis of

vagueness.

Thus, we find that the DEP acted outside of its statutory authority when it

included a scoop in the limited vehicular category of locomotive, mantrip car, or

personnel carrier, which require a portable fire extinguisher, and, therefore, we affirm

the Commonwealth Court’s order with respect to this issue.

For all of the above-stated reasons, we hold that (1) the DEP acted within its

statutory authority when it issued the administrative orders to Appellees for their failure

to report the “accidents” at issue in this appeal, under 52 P.S. § 690-104; but (2) the

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DEP acted outside its authority when it required scoops to be equipped with a portable

fire extinguisher under 52 P.S. § 690-273(f). Thus, we reverse in part, and affirm in

part, the order of the Commonwealth Court.

Jurisdiction relinquished.

Mr. Chief Justice Castille and Messrs. Justice Eakin, Baer, McCaffery and

Stevens join the opinion.

Mr. Justice Saylor files a concurring opinion.

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