ELR Citation: ELR 21545
No(s). 92-B-625 (D. Colo. Jul 28, 1992)

The court holds that an environmental organization that brought a Safe Drinking Water Act (SDWA) citizen suit to force Colorado to distribute lead contamination guidance documents to Colorado day care centers and to establish a remedial program for day care centers, as required by the 1988 amendments to the SDWA, is entitled to an award of attorney fees and costs. At the time the environmental organization sent its notice of violations letter, as required by the SDWA before citizen suits may be commenced, Colorado had been in violation of the 1988 lead contamination amendments to the SDWA for nearly three years. The court first holds that the environmental organization is the substantially prevailing party. Although Colorado entered into a consent decree and the organization filed its SDWA citizen suit on the day after the 60-day citizen suit notice period had passed, case law has established that a plaintiff may be a prevailing party in the absence of a judicial determination on the merits. Here, the environmental organization's complaint set out two specific requests for relief, both of which were achieved precisely and completely by the consent decree and order. Moreover, because the consent decree is a binding, judicially enforceable order, the legal relationship between the parties has been materially altered. In addition, the relief granted in the consent decree was required by law.

The court next finds that the environmental group's action was the catalyst for Colorado's acquiescence. In response to the environmental organization's notice of violations letter, Colorado entered into extensive settlement negotiations that ultimately led to the consent decree. Although the catalyst test for the recovery of attorney fees and costs under the citizen suit provisions of the SDWA turns on whether the "litigation" prompted a plaintiff's success on the merits, litigation does not begin on the day a complaint is filed. Here, litigation effectively began when the environmental organization sent the statutorily required notice of violations letter and threatened to bring a citizen suit. A plaintiff who forces compliance with the mandate of Congress should not be penalized because a defendant bows to the inevitable before a complaint is filed. The court next holds that notwithstanding Colorado's good faith in settling early, an award of attorney fees in this case is appropriate. Turning to the environmental organization's claim for $21,193.50 in attorney fees and costs, the court holds that the organization's claimed hours and per-hour charge are exceedingly reasonable.

Counsel for Plaintiff
Fern Shepard
Sierra Club Legal Defense Fund
1631 Glenarm Pl., Ste. 300, Denver CO 80202
(303) 623-9466

Counsel for Defendants
[Not available at printing.]