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decided: July 29, 1986.


Appeal from Order of the Commonwealth Court Entered September 26, 1985 at No. 222 C.D. 1985 Pa. Commonwealth Ct. , Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., concurs in the result. Larsen, J., files a dissenting opinion.

Author: Hutchinson

[ 511 Pa. Page 335]


The Neshaminy Water Resources Authority ("NWRA") directly appeals an order of Commonwealth Court en banc granting the Department of Environmental Resources's ("DER's") preliminary objections, which raise a question of

[ 511 Pa. Page 336]

    justiciability,*fn1 and dismissing this action. NWRA attacks regulations recently issued by the Environmental Quality Board governing the method of determining acceptable phosphorus levels in water, including those waters under NWRA's jurisdiction. NWRA contends these regulations inadequately protect the waters under its jurisdiction against future pollution. The new regulations rely on a model for estimating overall phosphorus levels will directly control only point discharge of pollutants instead of setting specific numeric limits for phosphorus. NWRA claims the model is inadequate and likely to result in future unacceptable phosphorus levels in its water supply as a result of general run-off from farms, residences and commercial establishments. Commonwealth Court properly determined that NWRA was not entitled to pre-enforcement relief from these regulations under our recent decision in Arsenal Coal v. Commonwealth, Department of Environmental Resources, 505 Pa. 198, 477 A.2d 1333 (1984). In Arsenal Coal, a regulated business defensively attacked the validity of a regulation DER imposed on it as invalid under a specific statutory provision. Here, appellant takes the offense seeking to compel an agency to subject others to more stringent regulation for appellant's benefit. Unlike Arsenal Coal, this statute does not require separate treatment for phosphorus and the regulation causes no direct and immediate harm to appellant. We therefore affirm Commonwealth Court.

NWRA filed its petition for review after the Environmental Quality Board issued regulations pursuant to the Clean Streams Law, Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§ 691.1-691.1001 (Supp. 1985). Those regulations removed a specific numeric level for allowable phosphorus

[ 511 Pa. Page 337]

    content and implemented a general model for determining whether a particular waterway contained too much phosphorus. NWRA alleges that this change would result in increased pollution of the waters of the Commonwealth generally and its waters specifically. It claimed that the model was not scientifically sound as it assumes that phosphorus in the water comes from point-source discharge into the water as opposed to general runoff. Thus, NWRA alleges that the new regulations would result in decreased water quality in violation of statutory and constitutional requirements to protect the environment.

DER filed preliminary objections to the petition for review. It claimed that the allegations were speculative and did not present a justiciable issue. Commonwealth Court granted this preliminary objection and dismissed the action.

Under Arsenal Coal, supra, NWRA properly commenced this action in Commonwealth Court in that court's original jurisdiction. It was therefore entitled to an appeal to this Court as of right and appropriately filed a notice of appeal to this Court. 42 Pa.C.S. §§ 761, 723. In Arsenal Coal, we noted that the Environmental Hearing Board did not have jurisdiction to conduct pre-enforcement review of regulations issued by the Department at the request of parties directly and immediately affected by those regulations. Because there was no other administrative tribunal available for that purpose, we held that it was possible in certain limited situations for a party directly affected by the application of the regulations to bring an action within Commonwealth Court's original jurisdiction to determine their validity.

Arsenal Coal involved an attack on a general strip mining regulation which directly and immediately affected the anthracite industry. The legislature and the Congress had granted partial exemptions to the anthracite industry from the general regulatory authority over surface mining of coal because of anthracite's unique characteristics. DER had nevertheless issued a single regulation governing all surface mining of coal, without recognizing the special

[ 511 Pa. Page 338]

    statutory treatment accorded anthracite. We held that the statutory review process was inadequate in that case because the company would suffer direct and immediate harm by not being able to immediately challenge the regulations. Simply stated, to challenge a regulation after Arsenal Coal a party must either establish that its activity is ...

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