ELR Citation: ELR 21254
No(s). S87-55 (N.D. Ind. Apr 26, 1990)

The court holds that an environmental group that successfully intervened in a Resource Conservation and Recovery Act (RCRA) action by the Environmental Protection Agency (EPA) against a hazardous waste disposal facility is entitled to attorney fees. The court first holds that the environmental group is entitled to a fee award under RCRA even though it intervened in the action under §113 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which does not contain a fee award provision. Congress intended an intervenor's suit under CERCLA §113 to be a citizen's suit under companion RCRA §7002 for purposes of assessing fees and costs. The court also holds that the environmental group is entitled to compensation for expenses incurred even though the permanent injunction, not provided for in either CERCLA §113 or RCRA §7002, is based on equitable and not statutory authority. To the extent that the environmental group prevailed in this action, it is entitled to compensation for expenses. In calculating the lodestar amount of fees recoverable, the court holds that even though the permanent injunction against the defendants was an element of relief not sought by EPA, the environmental group was a prevailing party that succeeded on a significant issue in litigation through independent legal representation, not on EPA's coattails. Moreover, the court finds that the factual and legal issues addressed by EPA and the environmental group overlapped too greatly to be separated for fee purposes. The court further finds that the presence of two attorneys for the environmental group was not excessive.

The court next denies certain amounts from the environmental group's fee recovery. The court holds that RCRA does not warrant a fee award for activities beyond the federal litigation and work useful and ordinarily necessary to obtain a favorable final result in the federal litigation. Plaintiff's participation in the administrative proceedings are clearly unrelated to those claims. Thus, the court excludes the nearly 40 hours devoted to national pollutant discharge elimination system permit proceedings. Similarly, the 23.2 hours spent on briefing an interrogatory rule must be excluded from the lodestar calculation. The court next holds that the 29.1 hours attributable to the environmental group's attorney's news conferences and meetings with representatives of the news media regarding the case are not recoverable under RCRA §7002. The First Amendment does not guarantee a reasonable hourly rate for speech, and public relations is not necessarily a lawyer's task. The court next holds that the environmental group's costs in monitoring proceedings before the bankruptcy court, in which defendants have related proceedings, are not reasonably charged to defendants. The court also holds that 27.3 hours spent in researching and drafting a motion for sanctions against defendants are unreasonably sought, since the court dismissed that claim before the environmental group filed the motion. Thus, that work did not contribute to a significant or prevailing issue in the case. Finally, the court holds that the hourly rate of $150 is reasonable, even though the attorney had agreed with the environmental group to charge $80 per hour. The court refused to apply a multiplier in calculating the final award. Although the award may be in jeopardy before the bankruptcy court, application of a multiplier is inappropriate given the defendants' already depleted assets. The high quality of the environmental group's legal representation is compensated in the hourly rate and does not need adjustment through a multiplier.

[Previous decisions in this litigation are published at 19 ELR 20674, and 20 ELR 20035 and 21251.]

Counsel are listed at 20 ELR 21251.