ELR Citation: ELR 21144
No(s). 90-1387 (D.C. Cir. Jul 13, 1993)

The court holds that an environmental group is entitled to an award of attorney fees of $14,069.25 for its challenge to the U.S. Environmental Protection Agency's (EPA's or the Agency's) promulgation without notice and comment of an amended regulation at 40 C.F.R. §261.11(a)(3) related to listing a solid waste as hazardous under the Resource Conservation and Recovery Act. The environmental group argued that EPA's amended rule implemented a policy change requiring notice and comment, because under the original regulation EPA could list a waste on determining only that the waste contained a toxic constituent, and under the amended regulation EPA had to determine also that the waste was capable of posing a substantial present or potential hazard to human health or the environment. The court vacated the amended regulation, and EPA issued notice and solicited comment on the proposed amendment and then reissued the amended regulation. The court holds that the group was entitled to attorney fees because it succeeded in changing the regulation then in effect. Although EPA later reissued the amended regulation, the comment period gave the group and other members of the public an opportunity to participate before and potentially to persuade the agency not to adopt the proposed amendment. The court disallows the group's request for $17,773.50 in fees for the time of one of the group's attorneys that the court found to be flagrant overbilling. The attorney reported having spent 3.5 hours completing a notice of appearance and 73.45 hours preparing two letters to EPA about the environmental group's request for attorney fees. In addition, the attorney claimed to have spent 21.1 hours drafting the motion for the fee award, which is essentially a boilerplate memorandum not tailored to the particular fee request. The court also disallows $700 in fees for the time another attorney spent in securing case approval from the group's litigation review committee. The court holds that complete disallowance of the group's fee request would unduly punish the organization because it happened to have been associated at one time with an attorney who inflated her billings.

Counsel for Petitioner
Howard I. Fox
Sierra Club Legal Defense Fund
1531 P St. NW, Ste. 200, Washington DC 20005
(202) 667-4500

Counsel for Respondents
Elizabeth M. Ahern
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Thomas H. Beisswenger
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090

Before WALD, RUTH B. GINSBURG, and D.H. GINSBURG, Circuit Judges.