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FRIENDS OF THE EARTH v. POTOMAC ELEC. POWER CO.

September 17, 1982

FRIENDS OF THE EARTH, et al., Plaintiffs,
v.
POTOMAC ELECTRIC POWER COMPANY, Defendant



The opinion of the court was delivered by: BRYANT

 BRYANT, District Judge.

 Plaintiff Friends of the Earth (FOE) brought this action against the Potomac Electric Power Company (PEPCO) pursuant to the "citizen suit" provision of the Clean Air Act of 1970, § 304, 42 U.S.C. § 7604 (Supp. IV 1980). FOE alleged PEPCO was in violation of regulations promulgated by the District of Columbia (the District) setting emission standards and limitations under the Act. Since states *fn1" and the Environmental Protection Agency (EPA) have responsibility for Act enforcement, FOE joined the EPA Administrator (Administrator); the Environmental Protection Agency; and the District of Columbia as necessary party-defendants to this action, pursuant to Fed. R. Civ. P. 19(a) (1) and (2).

 In response to FOE's suit, the District moved for realignment as a plaintiff. As grounds for its motion, the District alleged it had determined that enforcement action against PEPCO for violations of the Air Quality Control Regulations was necessary. Motion of the Defendant District of Columbia to be Realigned as a Party Plaintiff (filed June 16, 1975). The court granted the District's motion for realignment on October 24, 1975.

 On August 16, 1976, the court granted partial summary judgment as to the visible emissions aspect of the case. Friends of the Earth v. Potomac Electric Power Company, 419 F. Supp. 528 (D.D.C. 1976). Following that decision, the parties engaged in settlement discussions concerning the mass particulate emissions aspect of the case. On March 31, 1978, the parties filed an agreement which modified existing PEPCO operating practices and also included proposed legislation clarifying and modifying certain air pollution laws applicable to PEPCO's operations in the District. After the District enacted the legislative proposals and the EPA approved them, the parties filed a joint motion for dismissal of the complaint. By order filed May 13, 1980, the court granted that motion, and also retained jurisdiction for consideration of any party's motion for an award of the costs of litigation, including reasonable attorneys' fees.

 In the motion now before the court, the District asserts its claim against PEPCO for the costs of litigation, including attorneys' fees, pursuant to the "citizen suit" provision, § 304(d), of the Clean Air Act. *fn2" That section provides that

 PEPCO contends that the citizen suit section does not authorize fee awards to government enforcement agencies; and that even if the section authorizes such awards, an award is not appropriate in this case.

 For the reasons set forth below, the court denies the District's fee request. Since the court concludes that an award is inappropriate in this case, it does not reach the more fundamental question of Congressional authorization for costs awards to states which bring citizen suits. *fn3"

 HISTORY OF THE LITIGATION

 FOE's original complaint in this action and an August 5, 1975 letter from EPA's Regional Administrator *fn4" describe why the District of Columbia was named in this lawsuit. *fn5"

 The District of Columbia in July 1972 issued health regulations concerning particulate emissions; visible emissions; and records, reports, and monitoring devices. These regulations required immediate compliance by existing sources unless a written plan for delayed compliance was filed and approved by the District.

 In late 1972 and early 1973, the District advised PEPCO that PEPCO was violating particulate emission standards. The District requested PEPCO to submit a compliance plan by January 31, 1973. PEPCO submitted a plan which the District deemed deficient on August 15, 1973. On January 10, 1974 the District, pursuant to its health regulations, issued an abatement order to PEPCO.

 A hearing was held to review the District's order to PEPCO in summer 1974. According to FOE's complaint, at the hearing the Corporation Counsel agreed verbally with PEPCO that PEPCO would not be prosecuted for slight violations of the regulations. According to the Regional Administrator's letter, the Mayor as of early 1975 had not acted on the hearing examiner's report. In early 1975, FOE notified the Administrator and the District of its plans to file this citizen suit. FOE brought suit in May 1975, naming the District as a defendant. FOE's complaint alleges, "The District of Columbia Corporation Counsel's office has never gone to court against a polluter. The only sanctions to date ...


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