Appeal from the Order of the Environmental Hearing Board in case of Gateway Coal Company v. Commonwealth of Pennsylvania, Department of Environmental Resources, Docket No. 76-163-C.
Henry McC. Ingram, with him Philip C. Wolf, and Rose, Schmidt, Dixon, Hasley & Whyte, for petitioner.
Dennis W. Strain, Assistant Attorney General, for respondent.
Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 41 Pa. Commw. Page 443]
This is an appeal from an order of the Environmental Hearing Board (Board) which sustained a motion to dismiss a portion of an appeal taken by petitioner Gateway Coal Company from an action by the respondent Department of Environmental Resources (Department). We affirm.
This controversy involves procedures to be used to test for methane gas in connection with a new roof support system in petitioner's underground bituminous mine. Petitioner received initial approval to use the new system in the mine through the Commissioner of Deep Mine Safety (hereafter "Commissioner"). Thereafter, by letter dated August 12, 1975, the Commissioner rescinded that portion of the plan calling
[ 41 Pa. Commw. Page 444]
for testing for methane gas at the last row of permanent roof supports prior to bringing the roof support machine into place. The Commissioner stated in the letter:
This plan for testing methane gas is contrary to the requirements of Section 242(d) and 316(h) of the Pennsylvania Bituminous Coal Mine Act*fn1 which requires a test for methane gas to be made twelve (12) inches from the roof, face and rib of the working place before a machine is taken therein. . . .
I am, therefore, requesting that you contact [the] district mine inspector in order to formulate a plan of testing for methane gas which is in accordance with the requirements of the law.
Whether the act of disapproval in this letter is an appealable order is one of the pivotal issues in this case.
Thereafter the Commissioner appointed a Commission of mine inspectors pursuant to Section 124 of the Act, 52 P.S. § 701-124, to assist in developing a procedure to test for methane gas using the roof support system. The Commission report, approved by the Commissioner, recommended the tests be made at the working face not less than 12 inches from the roof before electrical equipment constituting part of the support system was brought into place. Subsequently, it appears that the Director of ...