Can the Pennsylvania Department of Environmental Protection interpret the Bituminous Coal Mine Safety Act to protect miner safety, or does it first need to go through the Board of Coal Mine Safety?

That was the crux of the argument before the state Supreme Court last week in the DEP v. Cumberland Coal Resources and DEP v. Emerald Coal Resources cases, with the DEP arguing that it needs the ability to act fast to prevent potentially deadly incidents and the mining companies contending that granting more powers to the DEP would create unnecessary and overlapping regulation.

“Mother nature can throw you a curve like that,” Mary Martha Truschel, who represented the DEP, said, snapping her fingers. “You have to be able to turn on that dime.”

The dispute stems from citations handed by the DEP to two coal mine operators for alleged safety violations, including failing to report accidents that required mine evacuations and failing to have fire extinguishers on scoops, which are used to transport tools. Scoops are also not included in the law’s definition of “locomotive,” which is required to carry a fire extinguisher, and the citations were issued for incidents that were not among those specifically enumerated as “accidents.”

A divided Commonwealth Court had ruled that the safety board, not the DEP, has the power to bring enforcement actions for the failure of any mine operator to report accidents, and further determined that the act also says that the list specifying which accidents must be reported may only be expanded through the normal regulatory process.

Truschel said the DEP’s position is consistent with the dissenting opinion that Commonwealth Court Judge Dan Pellegrini issued, and said “the statute is the floor, not the ceiling,” in terms of keeping miners safe.

She argued that the 14 events listed in the act as “accidents” are merely examples of the types of events that constitute an accident and are not an exhaustive list of all the violable incidents. She further contended that an accident is defined as “an unanticipated event” that “has already caused or has the potential to cause a real threat to miner safety.”

Truschel also argued that, under Section 501 of the act, the DEP can issue orders to effectuate the act and to increase miner safety, and therefore it had the authority to require fire extinguishers on the scoops.

Justice Max Baer noted that what Truschel referred to as “examples” of accidents is referred to in the act as a “universal list.”

“There’s a statute. You can’t go beyond the statute for laudatory intent,” he said. “You’re bound by the statute. You have to get a legislative response” to proposed changes.

However, Baer also asked whether a statute could ever list all the potential accidents that a mine may face.

Attorney R. Henry Moore of Jackson Kelly, who represented the mining companies, noted that the act was crafted for four years and outlines how changes to the safety rules can be made. He argued that the state General Assembly established the board to deal with any issues involving safety regulations and that the board adequately and appropriately handles all safety issues.

“There’s already a rule-making body in place,” he said, arguing that by issuing the violations, the DEP exceeds its authority. “The DEP is saying ‘our inspectors can do what they want,’ but what I’m saying is that we have a rule-making board to air it out.”

According to Moore, mine inspectors are on site almost daily, and the safety board already determined that it is not necessary to carry fire extinguishers on scoops.

He further contended that giving the DEP rule-making powers could create an economic burden for the mining companies, arguing that missing fire extinguishers frequently become unnecessary “gotcha” violations for inspectors to write up.

While Moore also noted that the 1-800 numbers provided to report incidents to state and federal agencies sometimes lead the mining agencies to call centers or automated answering services, he said that filing additional reports to the DEP could result in temporary mine shutdowns as crews wait for DEP inspectors to arrive.

However, Moore said considerations like these should be handled by the safety board, and that any proposed change to increase miner safety struck him “as a type of issue that should be discussed by the group identified by the legislature to make these decisions.”

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI. •