ELR Citation: ELR 21459
No(s). 90-6085 (6th Cir. Sep 19, 1991)

The court holds that a wastewater treatment plant operator that entered into a consent decree with the United States settling a Federal Water Pollution Control Act (FWPCA) enforcement action is not entitled to attorney fees under the Equal Access to Justice Act (EAJA). The consent decree specified that violations at the treatment plant were not caused by the defendant's negligence and contained a provision allowing the defendant to apply for an award of attorneys fees. The defendant made such an application, and the district court award the defendant attorney fees under the EAJA of $198,158 plus interest. The court of appeals now holds that the district court abused its discretion in making this award. Although the defendant's violations were not wilful, the federal government's pursuit of civil penalties was substantially justified under the EAJA. The government was substantially justified in arguing that the FWPCA makes the imposition of civil penalties mandatory once a defendant has been taken to court.

Counsel for Plaintiff-Appellant
Andrew Margen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant-Appellee
Edsel Jones
68 S. Main St., Winchester KY 40391
(606) 744-7666

Steven Mysliwiec
1200 19th St. NW, Washington DC 20036
(202) 861-3900

Before: NELSON and SUHRHEINRICH, Circuit Judges, and HOLSCHUH, Chief District Judge.^*