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Commonwealth of Pennsylvania v. Environmental Protection Agency

decided: February 12, 1980.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT NATIONAL COAL ASSOCIATION, INTERVENOR ; PENNSYLVANIA CITIZENS COALITION AND ENVIRONMENTAL LAW COUNCIL OF UNIVERSITY OF PITTSBURGH SCHOOL OF LAW, PETITIONERS V. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT



ON PETITION FOR REVIEW OF AN ORDER OF THE ENVIRONMENTAL PROTECTION AGENCY

Before Gibbons, Higginbotham and Sloviter, Circuit Judges. Before Gibbons, Higginbotham and Sloviter, Circuit Judges.

Author: Gibbons

Opinion OF THE COURT

These consolidated cases are petitions to review regulations, promulgated by the Administrator of the Environmental Protection Agency, which establish standards of performance for new point sources in the coal mining industry. Petitioner in No. 79-1057 is the Department of Environmental Resources of the Commonwealth of Pennsylvania. Petitioners in No. 79-1466 are the Pennsylvania Citizens Coalition and the Environmental Law Council of the University of Pittsburgh School of Law.*fn1 Intervenor-Respondent National Coal Association is a trade association whose members own or operate more than 50 percent of the nation's commercial coal producing capacity, which includes numerous mines and mine-related facilities in Pennsylvania. The Respondent in these consolidated appeals is the United States Environmental Protection Agency (EPA). We dismiss for lack of jurisdiction.

I. PROCEEDINGS BEFORE EPA

Petitioners seek review, pursuant to section 509 of the Federal Water Pollution Control Act, 33 U.S.C. § 1369 (1976 & Supp. I), of certain regulations promulgated by the Administrator of the EPA under section 306 of the Act, id. § 1316. Section 306 requires that the Administrator publish a list of source categories, including, at a minimum, the twenty-seven categories listed in the Act. See id. § 1316(b)(1)(A). Following inclusion of any new category on the list, the section requires that, within specified time limits, the Administrator promulgate standards of performance for new point sources in the category. Id. § 1316(b)(1)(B). The section defines "new source" as

any source, the construction of which is commenced after the publication of proposed regulations prescribing a standard of performance under this section which will be applicable to such source, if such standard is thereafter promulgated in accordance with this section.

Id. § 1316(a)(2). The same section also defines a "standard of performance" as

a standard for the control of the discharge of pollutants which reflects the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives, including, where practicable, a standard permitting no discharge of pollutants.

Id. § 1316(a)(1). Section 1362, the general definition section of the Act, defines "point source" to mean

any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture.

Id. § 1362(14).

In the instant case, the Administrator, acting pursuant to section 306, added coal mining as a new source category. See 40 Fed.Reg. 48,712-13 (1975). He thereafter promulgated the contested regulations. 44 Fed.Reg. 2586, 2590 (1979). These regulations specifically defer promulgation of regulations that will apply to those water polluting discharges attributable to closed or abandoned mines, which are known as post-mining discharges and which technically qualify as new point sources under the Act.*fn2 Petitioners contend that the ...


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