ELR Citation: ELR 20076
No(s). 89-B-978 (D. Colo. Sep 18, 1991)

The court holds that an environmental organization is entitled to $23,864.29 in attorney fees and litigation costs as a substantially prevailing party in a citizen suit under the Resource Conservation and Recovery Act (RCRA) to close two fluidized bed incinerators at the Department of Energy's (DOE's) Rocky Flats Nuclear Weapons Plant. The organization's citizen suit culminated in a consent decree entered without prejudice to the organization's recovery of attorney fees, which requires DOE to obtain a permit before operating the fluidized bed incinerators. The court holds that as a matter of law, the organization is a substantially prevailing party because the consent decree materially alters the legal relationship of the parties. Although the organization did not win closure of the fluidized bed incinerators, the consent decree order forecloses DOE from operating the fluidized beds under interim status. The court concludes that operating under interim status for years is perhaps allowed by the letter of the law, but clearly violates the spirit. The court further concludes that the change in the parties' relationship is material at a more practical level, since DOE cannot operate the fluidized bed incinerators during the time it takes to obtain a permit, and the permit procedure provides for public hearings, whereas operation under interim status would avoid such hearings. The court also holds that the organization is a prevailing party because it achieved the RCRA objective of protecting the environment and human health prospectively. The court holds that the organization's hourly rates are reasonable in light of prevailing local rates and the skill demonstrated in the organization's filings. The court holds that the hours expended are reasonable, except time spent on matters involving a private corporate defendant and on a motion for consideration of supplemental authority. The court rejects DOE's argument that the aggressive manner in which the organization sought settlement precludes an award of discovery costs and holds that diligent prosecution of the case during settlement negotiations was reasonable. The court also holds that time spent researching novel issues concerning interim status and closure was not mere background as DOE contends, but essential research. The court observes that litigants should be encouraged to file polished pleadings and holds that time spent drafting and revising the organization's complaint and notice of intent to sue were reasonable. The court holds that time spent in conferences between the organization's attorneys and its representatives was reasonable because attorneys have an ethical duty to keep their clients informed on the progress of a case. The court holds that minimal supervision and review activities were an essential component in light of the complexity of issues raised in the complaint. The court holds that a reduction of fees is not necessary. The court concludes that the organization achieved only partial success, not excellent results, but that its success was legally and practically significant. Further, the court observes that the success was achieved after a settlement and not after a trial on the merits, and a reduction of fees would discourage settlement, because public interest groups might not be willing to drop some initial demands for fear of losing litigation costs. Last, the court holds that time spent by the organization's volunteer coordinator is not recoverable.

Counsel for Plaintiff
Adam Babich
1515 Arapahoe St., Tower 3, Ste. 1100, Denver CO 80202
(303) 820-4497

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

William G. Pharo, Ass't U.S. Attorney
633 17th St., Ste. 1600, Denver CO 80202
(303) 294-1300