Earlier this month, the Commonwealth Court issued an unpublished opinion affirming a contempt order in a Pennsylvania Safe Drinking Water Act case, Department of Environmental Protection v. Peckham, No. 2094 C.D. 2011 (Sept. 7, 2012). That decision provides an occasion to consider a question that arises only from time to time, but with important case management implications: whether a defendant must be out of compliance with a requirement imposed by the department or the Environmental Protection Agency before the government may seek to “enforce” the administrative action in court.
Peckham itself does not present this issue. Peckham is the more conventional enforcement case. In that matter, the defendants operated a campground. The campground provided drinking water to those who stayed there. The defendants had no permit for the drinking water system.
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