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Concerned Citizens of Bridesburg v. Philadelphia Water Department

filed: March 31, 1988.

CONCERNED CITIZENS OF BRIDESBURG; COPPOLA, JAMES; KUMOSINSKI, ROBERT; PTAK, MIA; COPPOLA, KATHLEEN; HAGENDEY, HARRY; HAGENDEY, KATHLEEN; RICKEY, ELIZABETH; PFEIFFER, FRANCES; PFEIFFER, JOSEPH; LUDIGAN, EDWARD; LES, ANTHONY; MITCHELL, ETHEL R.; FINNEGAN, CHARLES A.; BUTLER, MICHAEL; LEWANDOWSKI, AL; LEWANDOWSKI, LINDA; DYLINSKI, KAREN; COMBS, CHARLES, H.; MARINUK, ETHEL; ARENWEH, KAREN; PAWLOWSKA, CECILIA; SHORT, DOLORES; DOMBROWSKI, VINCENT; PORTONI, BARBARA LYNN; ELTON, MARY; GROFF, RUTH C.; BURNS, ANNA-MAY; DONACHIE, EDNA; KINGSTON, EDNA; FOSTER, DENNIS J.; CHARLTON, KELLY; HAUG, MARK D.; PIERGROSSI, TILLIE; LARSEN, JOE; LARSEN, SUE; JOHN WATERS AUTO SALES; SILEO, RICH; ANTONELLI, AGNES; MANTICI, ALBERT; PORTONE, ROBERT J.; SCHMIDT, THELMA; LONG, BETTY; FRONCEH, MARK; FRANCEK, TONI; CONCEPTAL, BILL; CONCEPTAL, DEL; WOLK, LINDA; FERN, CLAIR; MCGOVERN, PEARL; KOZLOWSKI, LOUIS; PUSICZ, GELWIN; RISPO, JOYCE; SOUTHERLAND, STACEY; AUERWECK, TINIA; AUERWECK, ELIZABETH; MARINUK, ERNEST; YODIN, T.; MOSCICKI, CYNTHIA; RESPO, JAMES O.; GORSKI, MARIE; JAMES, FLORENCE; JAMES, JOE; ROMER, ANGEL; NOVAK, STEPHANIE; NOVAK, NELLIE; O'DONNEL, SUE; O'DONNELL, BILL; PIHALA, EDWARD, SR.; MCLAVERTY, JOHN; HILL, BENNETT; CALO, ANTHONY; WILLIAM, C.; FLANAGEN, ROBERT; REKALA, BOBBY; KUMOSINSKI, MAUREEN; PAWLOSKI, ANNA M.; PAWLOSKI, STANLEY M.; LISICKI, MICHAEL M.; LISICKI, LINDA A.; KUMOSINSKI, EMILY; MCMASTER, NANCY; ELTON, MARY; KUMOSINSKI, FRANK; PALKA, ANDY; HOWARD, AMEY E.; COPPOLA, KATHERINE; GORDON, JOSEPHINE; KONOPKA, ANNA; KURPASKA, ARLENE; PRENDERGAST, JOHN; PRENDERGAST, BETTY; LERMAN, PHIL; LERMAN, ESTHER; FLYNN, LINDA; WAGNER, VIRGINIA; JAMES, PAULINE; HAYES, JUSTINE; BINGEL, PETER; BINGEL, JOAN; PARCALE, MICHAEL; PALKA, ANDY; MASON, HELEN; PEOCCAINERI, FLORENCE; MALLOY, WILLIAM; HOOD, WILLIAM R.; RORENBERGER, HERB; MORONESE, WILLIAM; RENFE, JACK; SMITH, PERRY M.; SVITAK, JOHN; ATKINSON, JOHN; STARK, MICHAEL H.; PRINCE, WENDY; BERGER, DOLORES; BERGER, STANLEY; HIGHAM, BETTY; COLLINS, MARY LUCY; KIRBY, RONNIE; GOGOJ, MARY; MELLEY, WILLIAM; CASEY, ELLEN; GIBSON, SHARON; CUICH, LISE; FRONCEK, LINDA; PALKA, RITA; PARTTEZZIA, JACQUELINE; KOZLOWSKI, WALTER; SERPICO, CHRISTINA; MCKINLEY, ELEANOR; BYRME, STEPHIE; TURNER, SHEN; AND YODER, MARY
v.
PHILADELPHIA WATER DEPARTMENT; THE CITY OF PHILADELPHIA; MARRAZZO, WILLIAM J., IN HIS CAPACITY AS WATER COMMISSIONER OF PHILADELPHIA; WHITE, JAMES STANLEY, IN HIS CAPACITY AS MANAGING DIRECTOR OF THE CITY OF PHILADELPHIA; ROHM & HAAS COMPANY; AND ALLIED CORPORATION; CITY OF PHILADELPHIA, WILLIAM J. MARRAZZO AND JAMES STANLEY WHITE, APPELLANTS



On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil Action No. 85-0014.

Higginbotham, Scirica and Garth, Circuit Judges.

Author: Higginbotham

Opinion OF THE COURT

A. LEON HlGGINBOTHAM, JR., Circuit Judge.

This appeal rises from an action brought by the residential neighbors of an urban sewage treatment facility. The appeal concerns a contempt citation issued against appellants (together, "the City" or "Philadelphia") for violating an injunction previously entered by the district court. We hold that the district court at all times had federal subject matter jurisdiction over this action and that it did not err when it held Philadelphia in civil contempt. Accordingly, we will affirm the judgment of the district court in all respects.

I. BACKGROUND

Appellees, a community organization named the Concerned Citizens of Bridesburg and the individual residents who constitute it (collectively, "the Citizens") brought this action in 1985 under the citizen lawsuit provision of the federal Clean Air Act, 42 U.S.C. § 7604 (1982). The Citizens live in the Bridesburg section of Philadelphia. Their neighborhood surrounds the Northeast Water Pollution Control Plant ("the Northeast Plant"), a sewage treatment and disposal facility that serves the northeastern areas of Philadelphia. The Citizens' action alleged that Philadelphia was operating the Northeast Plant in violation of state and municipal odor regulations that are incorporated in the Pennsylvania State Implementation Plan ("the Pennsylvania SIP"), 40 C.F.R. § 52.2020 (1987). The Pennsylvania SIP is a federal regulation promulgated pursuant to the Clean Air Act, 42 U.S.C. § 7610 (1982). The action went to trial in May, 1986. Two months later, the district court, in an order that was accompanied by a comprehensive opinion, enjoined Philadelphia from, inter alia, operating the Northeast Plant in violation of the applicable odor emission regulations. Concerned Citizens of Bridesburg v. City of Philadelphia, 643 F. Supp. 713, 730-31 (E.D. Pa. 1986). Philadelphia took no appeal from this injunctive order.

On October 14, 1986, the Citizens moved that Philadelphia be found in civil contempt for violating the district court's injunction. At the hearing on this motion, the Citizens presented evidence demonstrating that, since August 1, 1986, air pollution inspectors working for the City of Philadelphia's Air Management Services had issued twenty-eight notices of violation against the Northeast Plant. During the time period from August 1 through October 14, the Northeast Plant had also been notified of additional resident complaints, filed pursuant to the injunction, for which Air Management Services did not issue odor violation notices.

On January 28, 1987, the district court found that Philadelphia had "repeatedly" violated the injunction and declared the City to be in civil contempt. Concerned Citizens of Bridesburg, Civil No. 85-14, mem. op. & order (E.D. Pa. Jan. 28, 1987), reprinted in Appendix ("App.") at 1967-82. To coerce Philadelphia to comply with the injunction, the district court at this time imposed a civil contempt sanction. It required Philadelphia (1) to employ an independent engineer to undertake a comprehensive study of the Northeast Plant and to make recommendations for the prevention of malodorous emissions therefrom, and (2) to pay $10,000 into the district court registry whenever the City violated the terms of the injunction three or more times within any thirty-day period. The district court also stated that if compensatory damages were subsequently awarded to persons injured by Philadelphia's contumacious actions, such damage awards would be defrayed by any coercive penalties that Philadelphia had paid into the district court's registry. Philadelphia took this appeal from the contempt judgment.

II. SUBJECT MATTER JURISDICTION

The first issue that we must address concerns the jurisdictional basis of the district court's adjudication of the underlying dispute. Since this is a question of law, our standard of review is plenary.

From the time the Citizens first filed their complaint, Philadelphia has contested the district court's subject matter jurisdiction over the action. The district court first dealt with this issue when it denied Philadelphia's pretrial motion to dismiss on the grounds that the odor regulations in the Pennsylvania SIP were invalid and unenforceable. Concerned Citizens of Bridesburg v. Philadelphia Water Dep't, Civil No. 85-14, mem. op. & order (E.D. Pa. Apr. 23, 1985), reprinted in App. at 122-43. Philadelphia renewed this motion at the start of trial. Joint Motion Of Defendants And Defendant-Intervenors For Summary Judgment Or In The Alternative For Dismissal, reprinted in App. at 389-91. The district court denied it from the bench.

After the trial was completed, the United States Environmental Protection Agency ("EPA") on May 20, 1986, published a regulation deleting the odor regulations from the Pennsylvania SIP. 51 Fed. Reg. 18,438-40 (1986), reprinted in App. at 1345-47. This regulation took effect on June 19, 1986. Notwithstanding this amendment to the regulatory scheme, the district court, in its judgment of July 28, 1986, held that it had subject matter jurisdiction over the Citizens' federal claims because they were valid at least until after the trial was completed. Concerned Citizens of Bridesburg, No. 85-14, op. & order at 33-34 (E.D. Pa. July 28, 1986), reprinted in App. at 1397-98. In addition, the district court found that the Citizens' complaint implicitly made out a claim of common law nuisance sufficient to give the district court subject matter jurisdiction. Id. at 37, reprinted in App. at 1401. These holdings were aspects of the judgment that Philadelphia did not appeal. Nonetheless, it now attempts, on this appeal from the contempt judgment of January 28, 1987, to attack collaterally the district court's legal conclusions regarding subject matter jurisdiction.

Philadelphia's claim that the district court lacked subject matter jurisdiction to enter the underlying injunction is now moot. On December 18, 1987, after we heard argument on this appeal, another panel of this Court held that the EPA's attempt to modify the Pennsylvania SIP by directly deleting the odor regulations was procedurally invalid under the applicable section of the Clean Air Act. Concerned Citizens of Bridesburg v. United States EPA, 836 F.2d 777 (3d Cir. 1987). That decision means that the EPA's attempt to delete the odor regulations from the Pennsylvania SIP is, and has always been, a legal nullity. See, e.g., United States v. Larionoff, 431 U.S. 864, 873 n. 12, 53 L. Ed. 2d 48, 97 S. Ct. 2150 (1977); Manhattan General Equip. Co. v. Commissioner, 297 U.S. 129, 134, 80 L. Ed. 528, 56 S. Ct. 397 (1936) ("A regulation which . . . operates to create a rule out of harmony with the statute is a mere nullity."). Accordingly, the district court's original pretrial determination that the Citizens' complaint alleged a cognizable federal claim under the Pennsylvania SIP, Concerned Citizens of ...


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