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decided: December 23, 1982.


No. 4 W.D. Appeal Dkt. 1982, Appeal from Order of the Commonwealth Court dated July 24, 1981 at No. 1638 C.D. 1980 reversing the Adjudication of the Environmental Hearing Board dated June 23, 1980 at Docket No. 78-132-B, 61 Pa. Commonwealth Ct. 48 A.2d (1981)


Dennis W. Strain, Pittsburgh, for appellant.

Harley N. Trice, II, Reed, Smith, Shaw & McClay, Pittsburgh, for appellees.

O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. O'Brien, C.j., concurs in the result. Flaherty, J., dissents.

Author: Nix

[ 499 Pa. Page 510]


This appeal is being entertained to consider the holding of the Commonwealth Court that the Pennsylvania General Safety Law, Act of May 18, 1937, P.L. 654, as amended, 43 P.S. ยง 25-1 et seq. (Act) does not authorize the issuance of administrative compliance orders. We disagree for the reasons that follow and reverse the order issued below. 61 Pa. Commw. 48, 432 A.2d 1135.

On October 10, 1980 the Department of Environmental Resources (DER) issued an order directed to the Butler County Mushroom Farm, Inc. (Butler) and to Roy Lucas (Lucas), Butler's maintenance supervisor at the mines, requiring a check system identifying all persons entering and exiting the underground areas of Butler's operation. A brief summation of the factual setting will assist in framing the legal issue presented.

Butler is engaged in the business of growing mushrooms in worked-out, underground limestone mines in West Winfield, Butler County and Worthington, Armstrong County. The areas were developed for mushroom growing by the construction of a floor and supports for the ceiling and sides of individual rooms or caverns, sized approximately 20 feet

[ 499 Pa. Page 511]

    wide, 120 feet long and 15 feet high. Water and electric lines and drains have been installed. The operation employs about 950 people, half of whom work underground. The mushrooms are grown in flat wooden trays that are seeded and stacked to the ceiling in the rooms and periodically watered and inspected. After a relatively short maturing period, the trays are removed by gasoline powered tractors to different areas for picking. After the trays are replenished, they are returned to the growing rooms and again stacked by gasoline powered high-lifts.

The potential for fire hazard arises from the presence of gasoline and electricity at all underground facilities. Where fire occurs underground, the danger is enhanced because the smoke and carbon monoxide is emitted in a confined area. Any person, including experienced rescuers, who enters underground during a fire is in serious jeopardy from fumes, as well as the hazards of fire generated roof-falls. Where a fire occurs when no one is underground, the rescuers do not enter and the fire is allowed to burn itself out. Rescuers have become subject to the hazards of smoke, carbon monoxide, bad roof and exhaustion.

Butler had established a check system that accounted for the presence of their hourly employees. However, persons other than those who used the time clock to compute the earnings frequently entered the mine areas. The latter group included supervisory personnel, independent contractors, food service employees, telephone repairmen and visiting members of the public, including touring high school students.

Upon inspection a representative of the DER recognized the inadequacy of the then existing check system and, as a consequence, the DER ordered Butler and Lucas to implement a check system which would identify every person underground at any given time. This order was issued for the safety of those who may be underground at the time of a fire as well as those rescuers who could avoid an unnecessary hazardous entrance during a fire. The availability of accurate information as to the whereabouts of all at the

[ 499 Pa. Page 512]

    time of a fire was deemed essential to the protection of all concerned.

Butler and Lucas filed an appeal to the Environmental Hearing Board (Board) from the order challenging the DER's authority to issue it. The Board sustained the authority of the DER to issue the order in question and the Commonwealth Court disagreed. It is to be noted that Butler, although reserving the right to question the validity of the order, did set up a check-off system that complied with the directive. Compliance with the order merely required a recordation of everyone authorized to be in the mines at all times to be accessible to persons on the surface. It has not been ...

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