ELR Citation: ELR 20652
No(s). 84-5174 (D.C. Cir. Jul 5, 1985)

The court holds that appellee, corporate owner of a shopping mall that joined a Federal Water Pollution Control Act (FWPCA) §505 citizen suit but sought relief only for aesthetic injuries and damages under pendent tort claims, lacked standing and thus is not entitled to attorneys fees and costs under §505. Ruling that corporations do not have standing to claim aesthetic injuries, the court holds that appellee's allegation of aesthetic injury from the seepage of diesel fuel from a bus yard into a stream one-half mile away from its premises does not constitute the requisite injury-in-fact absent any claim of economic damage. Appellee's allegation that it was injured from seepage of the diesel fuel into its basement, though it constitutes injury-in-fact, is also insufficient to establish standing because it is not within the zone of interests protected or regulated by the FWPCA. This claim is of a trespass, actionable only under common law, not pollution of a navigable waterway without a permit, actionable under FWPCA §505.

The court next holds that it does not have discretion under §505(d) to award costs and fees to appellee for its pendent tort claims. An award is only "appropriate" under §505(d) to the extent the costs were incurred in furtherance of FWPCA claims. Finally, the court refuses to award the costs of an expert witness hired by appellees, although the expert was essential to the §505 claim brought by citizen plaintiffs, who could have recovered these costs and reimbursed appellees.

Counsel for Appellant
Francis R. Rilatreau Jr., Robert Polk, William B. Bircher
Washington Metropolitan Area Transit Authority
600 5th St. NW, Washington DC 20001
(202) 637-1463

Counsel for Appellees
Waldemar J. Pflepsen Jr.
Finley, Kumble, Wagner, Heine, Underberg, Manley & Casey
1120 Connecticut Ave. NW, Washington DC 20036
(202) 857-4000

Before: TAMM and BORK, Circuit Judges, and McGOWAN, Senior Circuit Judge.