[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.
[J-77A&B-2013] - 19
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.
[J-77A&B-2013] - 20
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
[J-77A&B-2013] - 21
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
[J-77A&B-2013] - 22
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.
[J-77A&B-2013] - 23
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
[J-77A&B-2013] - 24
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
[J-77A&B-2013] - 25
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.
[J-77A&B-2013] - 26
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.
[J-77A&B-2013] - 27
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
[J-77A&B-2013] - 28
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
[J-77A&B-2013] - 29
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
[J-77A&B-2013] - 30
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
[J-77A&B-2013] - 31
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.
[J-77A&B-2013] - 32
DEP, Aplt. v. Cumberland Coal Resources
Combined Opinion