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decided: January 12, 1976.


Appeal from the Order of the Industrial Board in case of In Re: Appeal of United States Steel Corporation (Dilworth Mine, Rices Landing, Pennsylvania) from Department of Labor and Industry Compliance Order No. 209-6-175, Case No. 845-BH-S.


A. Sieber Hollinger, with him Reed, Smith, Shaw & McClay, for appellant.

Herbert S. Cohen, Assistant Attorney General, with him Charles S. Solit, General Counsel, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.

Author: Mencer

[ 22 Pa. Commw. Page 591]

United States Steel Corporation (U.S. Steel) appeals to this Court from an adjudication of the Industrial Board (Board) commanding U.S. Steel to comply with that portion of an order of the Bureau of Occupational and Industrial Safety of the Department of Labor and Industry (Department) requiring submission of U.S. Steel's plans for the construction of six surface structures at its Dilworth Mine.

Our scope of review in this appeal is prescribed by Section 44 of the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, as amended, 71 P.S. § 1710.44; therefore, the adjudication of the Board must be affirmed unless it is not in accordance with the law or unless it constitutes an arbitrary, capricious, or unreasonable determination due to the absence of substantial evidence to support its findings.

Initially, we note that we have carefully scrutinized the record below, and we find that it more than adequately supports the factual findings of the Board. Of course, our review does not stop here, as we are additionally required to examine the adjudication for such errors of law as may have been committed by the Board. It is this aspect of our review that brings into focus the substance of this appeal.

The history of this case began in 1972 when U.S. Steel commenced the construction of its new Dilworth

[ 22 Pa. Commw. Page 592]

    bituminous coal mine at Rices Landing, Pennsylvania. In addition to the mine structures, machinery, and equipment installed beneath the surface of the earth, U.S. Steel also began erecting above the ground at the site of the mine various structures and items of machinery and equipment necessary to support the overall mining operation.

On July 8, 1974, the Department issued its compliance order, alleging U.S. Steel's violation of Section 8 of the Fire and Panic Act, Act of April 27, 1927, P.L. 465, as amended, 35 P.S. § 1228. This section, when applied to U.S. Steel, allegedly would require that company to submit its construction plans for 16 surface structures to the Department for approval prior to construction. Also, U.S. Steel would be required to obtain a subsequent Certificate of Occupancy from the Department after the final inspection of the structures.

On August 28, 1974, U.S. Steel perfected an appeal with the Board, which held its first hearing on October 22, 1974. Prior to a second hearing on November 27, 1974, the Department rescinded its original compliance order with respect to 10 of the 16 structures at issue. Therefore, at the second hearing only the status of the remaining six structures -- namely, (1) the oil storage building, (2) the carpenter shop, (3) the cleaning shed, (4) the hoist house, (5) the substation building, and (6) the water treatment plant -- was considered. On March 26, 1975, the Board issued its adjudication which required U.S. Steel to submit its plans for these remaining six structures. This appeal followed.

U.S. Steel initially contends that the Department lacks jurisdiction to regulate any surface mine structures at any bituminous coal mine site. This contention is founded on the proposition that the Pennsylvania Bituminous Coal Mine Act, Act of July 17, 1961, P.L. 659, as amended, 52 P.S. § 701-101 et seq., and other relevant mining acts confer absolute exclusive jurisdiction upon

[ 22 Pa. Commw. Page 593]

    the Pennsylvania Department of Mines and Mineral Industries (since 1970, the Department of Environmental Resources (DER)) in the regulation, supervision, and inspection of all bituminous coal mines and their nearby environs. With this proposition we cannot agree.*fn1

We have carefully reviewed the Pennsylvania Bituminous Coal Mine Act in search of a legislative direction indicating that its application, to other than direct mining functions, is to be exclusive. We have found none. While in fact the Act in certain aspects does set forth requirements for a limited number of surface structures, we have discovered no broad comprehensive requirements mandating exclusive coverage of the Act to all surface structures, no matter how used in mining operations.*fn2 It is only in the area of miner safety in the performing of mining functions (especially subsurface functions) that the Act expresses its exclusivity. In all other areas the Act's control is limited to situations where its coverage extends by direct application.

The fact is that all surface structures or parts thereof, which are to some degree controlled by the Act, bear some direct relationship to the health and safety of mine workers performing mining functions. The Act's obvious intent is to regulate the ongoing functions of a mining enterprise with particular emphasis on in-mine safety, not to regulate all of the construction plans of structures frequented

[ 22 Pa. Commw. Page 594]

    by surface personnel.*fn3 This is not to say that some provisions of the Act do not conflict with, or are not duplicative of, other provisions of statutes of general applicability in the Commonwealth. What we conclude is that the Act does not so broadly encompass all aspects of bituminous coal mining as to preclude the application of the general statutes of the Commonwealth. See Statutory Construction Act of 1972, 1 Pa. C.S. § 1971.

U.S. Steel cites Harris-Walsh, Inc. v. Dickson City Borough, 420 Pa. 259, 216 A.2d 329 (1966), as controlling this issue. With this we cannot agree. Harris-Walsh concerned the provisions of a borough ordinance regulating the operations of anthracite coal strip mining within the borough's boundaries. Our Supreme Court found this ordinance to be in direct conflict with the Anthracite Strip Mining and Conservation Act, Act of June 27, 1947, P.L. 1095, as amended, 52 P.S. § 681.1 et seq. After reviewing the legislative history of the Anthracite Strip Mining and Conservation Act and after discussing at some length the exclusivity of that Act, our Supreme Court held that the Act had totally preempted legislative action in the same field by any political subdivision such as a borough.

In the instant case we are not, as in Harris-Walsh, confronted with a statutory preemption conflict between a borough ordinance and a state statute. Instead, there exists here merely an alleged conflict between two state

[ 22 Pa. Commw. Page 595]

    statutes or between two general bodies of state law. This is quite a different matter.*fn4 In Harris-Walsh, the borough ordinance included a provision, which the defendants were charged with violating, requiring the defendants to post bond guaranteeing the subsequent reclamation of stripped properties, an area of law specifically covered by the Commonwealth's statute. Harris-Walsh therefore involved a matter of preemption between the directly conflicting legislation of two governmental bodies, one of which (the municipality) is necessarily constitutionally inferior to the other (the Commonwealth). See Western Pennsylvania Restaurant Association, supra note 4. In the instant case, the source of authority is the same; i.e., the Commonwealth acting through its General Assembly.*fn5

Finally, we note that in Harris-Walsh the Supreme Court only held that the Anthracite Strip Mining and Conservation Act preempted municipal direct regulation of anthracite mining functions; it did not preclude the application of all laws or even all ordinances in the Commonwealth.*fn6

[ 22 Pa. Commw. Page 596]

To hold otherwise would result in the absurd conclusion that all of the general laws of the Commonwealth concerning all levels of human conduct and societal interaction do not apply to strip mines or their environs. This is not the law under the Anthracite Strip Mining and Conservation Act, and it also cannot be the law under the Pennsylvania Bituminous Coal Mine Act.

Hence, we return to the two statutes and their respective provisions. Section 8 of the Fire and Panic Act, 35 P.S. § 1228, provides in part:

"It shall be the duty of the owner, architect, or contractor of every building or structure, as described in this act, hereafter erected, adapted, remodeled, or altered, to submit to the Department of Labor and Industry for approval, architectural drawings, specifications, or other data showing compliance with the provisions of this act and the rules and regulations of the said department which may be promulgated for the enforcement of the provisions of this act. No such building or structure shall be erected, adapted, remodeled, or altered, until such plans have been examined and approval given by the Department of Labor and Industry, and a building permit obtained in municipalities where such permit is required by ordinance.

"Any such owner, architect, or contractor, whose drawings or specifications have been submitted to and approved by said department as herein provided, may proceed with the erection, adapting, remodeling, or altering of such building or structure without submitting such drawings or specifications to or obtaining the approval of any other department, board, or agency of the State government."

[ 22 Pa. Commw. Page 597]

Additionally, we note that the Act would normally encompass in its application most surface structures at mining sites.*fn7 Conceding the Fire and Panic Act's coverage of the structures at issue,*fn8 we note that we have not found any provision in the Pennsylvania Bituminous Coal Mine Act requiring in any manner procedures similar to those found in the Fire and Panic Act (i.e., presubmission and approval of building plans for occupied structures). At most, the Pennsylvania Bituminous Coal Mine Act requires the ongoing general inspection of already completed buildings for the purpose of eliminating postconstruction changes in conditions that might contribute to the detriment of employee safety.

Therefore, we hold that the procedures set forth in the Fire and Panic Act relevant to our discussion here do not directly conflict with any provisions of the Pennsylvania Bituminous Coal Mine Act. Consequently, U.S. Steel is required to submit its plans for all surface structures

[ 22 Pa. Commw. Page 598]

    covered by the Act to the Department prior to construction.

Of course, after submission of the plans, the Department and U.S. Steel will have to reconcile the conflicting standards set forth in the two statutes and in the respective regulations that are present now or may be promulgated in the future. A resolution of the problems that may arise from this area is not presently before us. We do, however, urge the respective parties to this appeal, and the additional authorities that may subsequently become involved in this problem, to exercise a high degree of reasonableness respecting the views of opposing parties. Both acts considered here have the same laudatory purpose -- the protection of the working person in this Commonwealth. We trust that neither act will be subjected to interagency bickering or unnecessary litigation.


And Now, this 12th day of January, 1976, the March 26, 1975 order of the Industrial Board applicable to the United States Steel Corporation is hereby affirmed.



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