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United States v. Perkiomen Valley Preservation Society Inc.

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


March 27, 1985

UNITED STATES OF AMERICA
v.
PERKIOMEN VALLEY PRESERVATION SOCIETY, INC. PERKIOMEN VALLEY PRESERVATION SOCIETY, APPELLANT

Appeal from the United States District Court for the Eastern District of Pennsylvania, (D.C. Civil No. 83-4787), District Judge: Honorable Alfred L. Luongo

Author: Aldisert

Before: ALDISERT, Chief Judge, SLOVITER, Circuit Judge, and MANSMANN, District Judge.*fn*

MEMORANDUM OPINION OF THE COURT

ALDISERT, Chief Judge.

In this appeal, we must determine whether the district court erred in concluding that Perkiomen Valley Preservation Society (Perkiomen) violated four separate parts of a consent decree and in imposing a penalty of $270,000 for those violations pursuant to the terms of the decree. Finding no error of law or abuse of discretion, we affirm the judgment of the district court.

Perkiomen owns and operates a public drinking water supply and sewage system for a real estate section in Marlborough Township, Montgomery County, Pennsylvania, known as Marantha Park. The park consists of approximately 120 small wooden cabins and several large buildings. In 1980 Perkiomen began selling and leasing the cabins as condominiums. The Safe Drinking Water Act, 42 U.S.C. ยงยง 300f et seq. and regulations promulgated pursuant thereto provide a comprehensive regulatory framework wherein the Environmental Protection Agency (EPA) monitors and regulates the bacteriological contaminate levels of public water systems. In 1982 the EPA and its Pennsylvania counterpart began taking water samples at Maranatha Park. The agencies found that the water provided by Perkiomen ranged in color from brown to black, contained "considerable suspended matter," and had a foul odor. The testing showed that the water contained unsafe bacteria levels far above the applicable federal standards for safe drinking water. The EPA issued an emergency administrative order to Perkiomen on March 4, 1983, requiring it to provide an alternative source of potable drinking water within 30 days. Previously, in December 1982, Pennsylvania had declared the water system to be a public health hazard.

Apparently Perkiomen supplied no satisfactory solution to the problem and the United States filed an action in district court on September 30, 1983, seeking a preliminary injunction. Thereafter, the parties submitted a consent decree to the district court that required Perkiomen to complete construction of a water and sewage system to the cottage area by February 1, 1984; to provide an appropriate water treatment facility to lower the manganese and iron levels in the drinking water; to complete construction of a water distribution system to the rancher area of maranatha; and to "[c]ontinue to provide an alternate source of potable water to residents which meets all federal standards until such time as a permanent source of potable water which meets all federal standards is available to each residence." App. at 42a. The consent decree also set forth a detailed notification procedure. The court approved the consent decree on November 3, 9813 which was entered on November 7, 1983.

An examination of the record indicates that no construction was begun by December 20, 1983. Further, construction to the rancher area of maranatha did not begin until some time after February 29, 1984. Because Perkiomen failed to comply with certain provisions of the consent decree, including the construction deadlines and the delay notification provisions, the United States moved the district court to hold Perkiomen in contempt. Following an evidentiary hearing on the motion, the district court, on April 18, 1984, found Perkiomen in contempt. In June the court imposed civil monetary penalties totalling $270,000. The standard of review is abuse of discretion.

In arguing on appeal that the district court erred in concluding that it violated the decree and in imposing penalties, Perkiomen makes three points. It asserts that the district court abused its discretion because the delays were de minimus or caused by acts of God beyond the control of appellant; performance of the consent decree was commercially impractical due to extreme, adverse weather and working conditions faced by an independent contractor; and the amount of the penalty assessed is excessive in light of the nature of the violations and the appellant's financial condition.

We are impressed by the district court's treatment of this problem:

THE COURT: Mr. Harris, over the years residents in this area are aware that cold weather will be encountered at some point, if not throughout the period in December, January, February and March. Your client entered into a consent decree aware that the time included the winter months in the northeastern portion of the United States. So, I cannot listen too sympathetically to these pleas of cold weather in January; nothing unusual about that in this part of the country. We are accustomed to it, we know that that is what we are going to get. We may get a respite for a new days, but not for very long.

App. at 62a-63a.

THE COURT: This is an unfortunate situation. it is one in which I have very little discretion.

What we have here is a consent decree that was entered into by the parties, and that consent decree was a clear and unequivocal undertaking by the defendant, Perkiomen Valley Preservation Society, to accomplish certain things by a certain date, and the Society undertook to pay a penalty of $1000 for each day for each violation that was committed.

All that was left to the Court to determine was whether any of the violations could be excused for acts of God, and the only act of God to which any reference has been made was the extremely cold weather that was encountered in January of 1984.

Going far beyond that which was committed to me, I am going to give a credit of 30 days to Perkiomen Valley for an act of God for the cold weather during January. I am going to eliminate 30 days. But, on all of the other requests that have been made by the government, I am going to impose the fines or penalties as agreed by the parties of $1000 per day.

I will suggest to the government that it may wish, after I have done this, to come to some agreement and accommodation to settle it, but that is a matter between the parties. What has been committed to me is quite clear, and the parties have agreed as to what the dates are and I will recite for the record those dates.

The first important date was that by the consent decree the supply was to be completed by February 1, 1984. It was not. As I said, I am going to give a 30-day credit on one of these, and I will come to it in a few moments.

There had been a water treatment facility in place, but that water treatment facility was removed on February 20, because it was turning out to be too expensive, and that was not replaced until May 14. So, whatever number of days that is -- and I think that has been computed by the government here, and I will where that is . . . I find that a fine of $1000 per day for 84 days is appropriate for that violation and will be assessed.

The water distribution and sewage collection system was to have been completed by February 1, and this is the one on which I will give a 30-day credit. It was not in place until April 30. . . .

[60 days for the cottage area]

There was a failure to provide potable water for a period of 14 days as of the time of the last hearing. I will not impose any penalty for any violations since because I have not had presented to me the appropriate kind of evidence and I think that in light of the other fines the government may not wish to pursue that. But, in any event, 14 days at $1000 for the failure to provide potable water up to the time of the hearing, April 12, 1984. We have a total here of $84,000 plus $112,000 plus $14,000 . . . [and] $60,000 for the cottage area. As I quickly add it up, it is $270,000?

App. at 226a-230a. We are impressed by the district court's determination and application of the law and hold that it did not abuse its discretion.

The judgment of the district court will be affirmed.


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