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


DEPARTMENT OF ENVIRONMENTAL                    :   No. 4 WAP 2013
PROTECTION,                                    :
                                               :
             Appellant                         :   Appeal from the Order of the
                                               :   Commonwealth Court entered
             v.                                :   September 20, 2011 at No. 495 CD
                                               :   2010 affirming the Order of
CUMBERLAND COAL RESOURCES, LP                  :   Environmental Hearing Board entered
AND AMFIRE MINING CO., LLC,                    :   March 16, 2010 at Nos. 2009-068-L,
                                               :   2009-069-L, 2009-070-L, 2009-071-L,
             Appellees                         :   2009-072-L, 2009-082-L, 2009-139-L,
                                               :   2009-140-L.
DEPARTMENT OF ENVIRONMENTAL                    :
PROTECTION,                                    :   No. 5 WAP 2013
                                               :
             Appellant                         :   Appeal from the Order of the
                                               :   Commonwealth Court entered
             v.                                :   September 20, 2011 at No. 764 CD
                                               :   2010, affirming the Order of
EMERALD COAL RESOURCES, LP AND                 :   Environmental Hearing Board entered
CUMBERLAND COAL RECOURCES, LP,                 :   March 30, 2010 at Nos. 2009-023-L,
                                               :   2009-040-L.
             Appellees                         :
                                               :

                                                   ARGUED: October 15, 2013




                                CONCURRING OPINION


MR. JUSTICE SAYLOR                                 DECIDED: SEPTEMBER 24, 2014


      I join the majority opinion as it relates to the “accidents” question.

      With respect to the Department’s compliance orders pertaining to placement of

portable fire extinguishers on scoops to supplement their existing automatic fire
protection systems, I agree with the majority’s conclusion that scoops are not

locomotives, mantrip cars, or personnel carriers under Section 273(f) of the Mine Safety

Act. See Majority Opinion, slip op. at 29-30. My only reservation about the majority’s

reasoning concerns its breadth relative to the Department’s wider array of powers. See

id. at 31 (“[T]he DEP’s suggestion that, simply because it is safety related, it can require

fire extinguishers on all vehicles, even if they are not statutorily required, would be to

arrogate a power without a statutory basis, making it virtually impossible for a mine

owner to reasonably understand what is required of it so as to comply with the law, and

to raise the specter of constitutional infirmity on the basis of vagueness.”). Left to my

own devices, I would confine the present discussion more closely to the factual scenario

at hand, entailing the Department’s issuance of notices of violation expressly predicated

on an incorrect interpretation of a statute.

       I realize that the Department suggests, as an alternative to its position on

statutory construction, that we can disregard the specific grounds for its compliance

orders which are plainly stated on the face of each, see R.R. 101a-107a (reflecting that

each compliance order specifies Section 273 as the basis for the relevant violation), and

treat such orders as a general exercise of the agency’s broader powers to effectuate the

purposes of the Mine Safety Act and advance safety. However, I would simply decline

to proceed beyond the matters at hand in such a fashion.           In this regard, I would

suggest that some underlying source of authority must precede a violation, whether this

may be a statute, regulation, or other form of valid administrative prescription or

pronouncement.




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