Appeal from the Order of the Environmental Hearing Board in the case of Butler County Mushroom Farm, Inc. and Roy Lucas, Supervisor v. Commonwealth of Pennsylvania, Department of Environmental Resources, No. 78-132-B.
Harley N. Trice, II, Reed, Smith, Shaw & McClay, for petitioners.
Dennis W. Strain, Assistant Attorney General, for respondent.
Judges Rogers, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Rogers.
Butler County Mushroom Farms, Inc. (Butler)*fn1 is engaged in the business of growing mushrooms in mined-out limestone mines at two locations, one in Butler and the other in Armstrong County. It employs about 950 people. All hourly employees who work underground are and have been required to record their presence on a time clock and it is agreed by the parties that this is a satisfactory means of keeping records of who and how many of such employees are in the mine at any time. Prior to the events giving rise to this litigation, the employer had no system for determining who or how many salaried employees or others aside from hourly employees were in the mines.
The matter of the absence of a system which would make the names of everyone in the mines at any time accessible to persons on the surface seems to have been a matter of concern to the Director of the Office of Deep Mine Safety, Department of Environmental Resources (DER), for some time; and on October 20, 1978, DER over the signature of the Director issued a directive, which it called an order, that Butler implement a "check system" at its facilities, in addition to the time clock system for hourly employees, so that the identity of all persons underground other than those using the time clocks should be recorded. Recited as authority for the order was the "General Safety Act", Act of May 18, 1937, P.L. 564, as amended, 43 P.S. § 25-1; certain DER regulations;*fn2 and Section 1917-A of the Administrative Code, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 510-17.
Butler appealed the order of October 20, 1978, to the Environmental Hearing Board (EHB) and after being refused a supersedeas filed the plan required by the order. The plan was approved by DER and Butler filed a precautionary appeal from the action of approval. It also implemented the system in accordance with the approved plan subject to a self-proclaimed assertion that its act of compliance should not affect its right to pursue its challenge to the order.
Butler asserted and still asserts that the "General Safety Act" confers no authority upon DER or any officer of DER to issue administrative orders in its enforcement, so that the order is a nullity; and that Section 1917-A of the Administrative Code conferring on DER the power to order nuisances to be abated was
not a proper basis for the order because the absence of a "check system" for persons other than hourly employees did not constitute a public nuisance.
The case therefore presents the question of whether the "General Safety Act" gives DER the power to issue administrative orders in the enforcement. The ...