ELR Citation: ELR 20225
No(s). CS-92-78-FVS (E.D. Wash. Jun 28, 1992)

The court holds that a chemical company is not a prevailing party entitled to attorneys fees in its complaint to enjoin the Environmental Protection Agency (EPA) from enforcing a compliance order under §3008(c) of the Resource Conservation and Recovery Act (RCRA) against the company. After the company received EPA's complaint and compliance order, which provided that RCRA's violations "shall subject" the company to civil penalties up to $25,000 per day of violation, the company filed a due process complaint claiming the order denied them an opportunity to be heard prior to imposition of penalties and obtained a restraining order barring assessment of any penalties pending a hearing. Before the hearing, the parties agreed to amend EPA's complaint to provide that EPA "may assess" daily civil penalties for noncompliance. The court holds that the amended order merely clarifies the "shall subject" language of the first order without altering the legal relationship between the parties, which is required under U.S. Supreme Court precedent. For that standard to be accomplished, the "shall subject" language in the first complaint would have to be interpreted as notice that a $25,000 daily fine was already accruing against the company.

Counsel for Plaintiff
Les Weatherhead, Brian T. Rekoske
Weatherspoon, Kelley, Davenport & Toole
1100 U.S. Bank Bldg., Spokane WA 99201
(509) 624-5265

Counsel for Defendant
Allen D. Greenberg
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000
Robin Juni
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090