Appeal from the Order of commission of the Department of Environmental Resources in case of Buckeye Coal Company v. Maurice K. Goddard, Secretary, Department of Environmental Resources; and J. M. Muchnok, Jr., Commission of Bituminous Mine Inspectors; and Commonwealth of Pennsylvania.
Harold R. Schmidt, with him Henry McC. Ingram, Philip C. Wolf, and Rose, Schmidt and Dixon, for appellant.
John W. Carroll, Special Assistant Attorney General, with him Robert Lesko, Assistant Attorney General, for appellees.
Before Judge Rogers. Exceptions argued August 1, 1973, before Judges Crumlish, Jr., Wilkinson, Jr., and Rogers, sitting as a panel of three.
OPINION AND ORDER BY JUDGE ROGERS
The Buckeye Coal Company ("Company") has appealed to this court from the decision of a commission appointed by the Secretary of the Department of Environmental Resources to examine into the matter of an appealed decision of a district mine inspector. The governing statute is the Pennsylvania Bituminous Coal Mine Act, Act of July 17, 1961, P.L. 659, 52 P.S. § 701-101 et seq., Section 123 of which (52 P.S. § 701-123) describes the procedures before our court as follows: "The mine inspector shall exercise sound discretion in the performance of his duties under the provisions of this act, and if the operator, superintendent, mine foreman, or other person employed in or about any mine, shall be dissatisfied with any decision the mine inspector has given in the discharge of his duties, which decision shall be in writing, it shall be the duty of the dissatisfied person to appeal from said decision to the secretary, who shall at once appoint a commission to accompany promptly the mine inspector in the district
to make further examination into the matter in dispute. If the said commission shall agree with the decision of the mine inspector in the district, their decision shall be final and conclusive, unless the dissatisfied person shall, within seven days of the receipt of the decision of the commission, appeal therefrom to the court of common pleas of the county in which said mine, or a portion thereof, is situated. Whereupon, the court, or a judge of said court, in open court or in chambers, shall promptly hear such appeal, and shall permit testimony and argument, oral or written, or both, by both parties. In such appeal, the appellant shall be designated the plaintiff and the secretary shall be the defendant. Within five days after conclusion of testimony and argument, the said court shall issue such decision and order as may be proper and appropriate under the circumstances. Such decision shall be final, subject only to review by the Superior Court upon a petition for certiorari filed in such court within sixty days from the entry of said decision and order. Said appeal to the said court of common pleas shall act as a supersedeas of the decision of the Commission."
While our jurisdiction is not a specific issue raised by either party, it is involved. We are advised that Company, as a precaution, has also filed an appeal pursuant to Section 123, supra, in the Court of Common Pleas of Greene County. Jurisdiction is in this Court, not the Court of Common Pleas of Greene County. Section 123 was repealed by the Appellate Court Jurisdiction Act of 1970 insofar as it vests jurisdiction and powers in courts in any matter inconsistent therewith. Act of July 31, 1970, P.L. 673, § 509(g)(55), added by Act of June 3, 1971, P.L. , 17 P.S. § 211.509(g)(55). In Hartman v. Commonwealth, 6 Pa. Commonwealth Ct. 409, 295 A.2d 850 (1972), we held that provisions of The Vehicle Code identical to Section 123
and identically affected by the Appellate Court Jurisdiction Act, demonstrated legislative intent that this Court should have jurisdiction.
Having thus determined that we had jurisdiction, we received the evidence proffered by the parties in extensive hearings. After review of such testimony as has been transcribed, our notes as to the rest and oral argument, we make the following:
(1) The Buckeye Coal Company, ("Company"), a subsidiary of Youngstown Sheet and Tube Company, is the owner and operator of a bituminous coal mine located in Greene County and known as the Nemacolin Mine.
(2) The Nemacolin mine is located with the so-called Pittsburgh seam, a rich deposit of bituminous coal stretching almost uninterruptedly from Charleston, West Virginia to Windber Borough, near the northern boundary of Somerset County, Pennsylvania.
(3) At the Nemacolin mine the Pittsburgh seam is about 400 feet below the surface of the land. The Nemacolin mine is a so-called shaft mine, that is, one in which the coal is reached by shafts dug to the level of the seam, although in the case of Nemacolin there is at least one point at which there is an opening at the surface through which access can be had by foot over a slope to the workings.
(4) The Nemacolin mine is bounded on one side by the Monongahela River and the coal seam is below the level of the river. As a result of this and other factors, the earth at the level of the coal seam of the Nemacolin mine has been saturated with water for eons.
(5) The Pittsburgh seam is about eight feet thick. It is mined at Nemacolin by driving corridors through the seam. These corridors are variously called entries,
rooms or hearings. From these corridors, which we will hereafter refer to as entries, other corridors, called crosscuts, are driven at right angles, leaving a grid pattern of entries and crosscuts. The coal left at the intersections of the entries with the crosscuts, are called pillars and they provide roof support for the entries and crosscuts.
(6) The process of driving the entries and the crosscuts is called development of the mine. After the development of a portion of the mine is completed the pillars of coal are removed commencing at a place farthest from the entrance. This process is called retreating.
(7) The entries and crosscuts are about 17 feet wide. At the right angle intersections of entries and crosscuts, the diagonal dimension of the open spaces are about 24 feet.
(8) The entries and crosscuts are about seven feet high. This height provides a roof of coal about one foot thick for the entries and crosscuts.
(9) Above the said roof of coal in the Nemacolin mine, there are layers of slate, shale and so-called rooster coal of a total thickness of four or five feet. Above this fractured material is a bed of sandstone as much as 50 feet thick.
(10) The stratum of sandstone in the Nemacolin mine is massive and competent. A competent rock is one capable of supporting that which is above it.
(11) Roof support, in addition to that provided by the coal pillars in the Nemacolin mine, is prescribed by a Roof Support Plan approved by the United States Department of the Interior, Bureau of Mines, and the Department of Environmental Resources.
(12) The approved roof plan of the Nemacolin mine authorizes the use of roof bolts as a means of roof support.
(13) Roof bolts are rods, six to eight feet in length and about five-eighths of an inch in diameter, on one end of which is an expanding shell anchor. The roof bolt is inserted in a previously drilled hole through the roof of the mine and the overlying slate and shale and into the massive competent sandstone. It is bolted to the sandstone by means of the expanding shell anchor.
(14) The roof bolt is also passed through a wooden header block and a steel plate which are placed against the mine roof. By tightening of the bolt, the block and plate are pressed against the roof and held there by the bolt anchored in the sandstone above. One witness accurately described roof bolting as the nailing of a ceiling to rafters.
(15) In the Nemacolin mine the bolts are placed four feet apart longitudinally and transversely.
(16) The Nemacolin roof plan provides for other means of roof support where roof bolts cannot be used, that is, where the bolts cannot be adequately anchored in the sandstone. These other means of support are "cross timbering," which consists of posts on either side of the corridor on the top of which are affixed timbers against the roof, and "center-posting," which is the placement of posts in the middle of the entries or crosscuts.
(17) The roof of the Nemacolin mine is less subject to falls than roofs of 60 per cent of the mines in the Pittsburgh seam.
(18) The holding quality of roof bolts is determined by taking tests, by means of torque wrenches, which measure the amount of pressure necessary to turn the bolt. If the bolt turns too easily the indication is that it is not supporting the roof and is therefore not anchored in a sufficient beam; if too much energy is necessary to turn the bolt the indication is that there is excessive weight on the bolt.
(19) Roof bolting is an acceptable means of roof support and has been in use in the Pittsburgh seam for upwards of 20 years.
(20) The Nemacolin mine is divided into sections which are given names. One such section, called the 118 Road Section, consists of seven entries numbered 1 through 7, and of fifteen crosscuts numbered 1 through 15.
(21) In March 1971, a fire broke out in the 118 Road Section of the Nemacolin mine. Efforts were made to fight the fire underground and by the introduction of slag until sometime in April, 1971 when it was determined that the only way to extinguish the fire was by flooding. Bulkheads were constructed for this purpose and the mine flooded to depth which immersed the entries, the crosscuts and the overburden, including the shale above the roof.
(22) The flooding was completed in September 1971 and the mine remained flooded until about September 1972.
(23) Between March of 1971 and September 1972, the Company engaged in cutting through the coal in other sections in the direction of the 118 Road Section, which was reached on September 14, 1972. Thereupon a mine rescue team explored the 118 Road Section and a map was made by persons on the surface by recording on a plan of the mine observations transmitted by telephone from below.
(24) The observations of the mine rescue team included descriptions of roof conditions as being good in many places in the 118 Road Section.
(25) The work of inspection continued until the bodies of the two victims of the fire were brought out ...