Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.



May 24, 1983


June L. Green, United States District Judge.

The opinion of the court was delivered by: GREEN



 This action is before the Court on the motion of Citizens Coordinating Committee on Friendship Heights, Inc., the Town of Somerset, Maryland, and the individual plaintiffs for an award of costs and attorneys' fees. For the reasons set forth below, the Court grants the motion and awards attorneys' fees and costs in the amount of $ 60,936.79.

 I. Background to this Lawsuit

 This action was filed under the citizen suits provision of the Clean Water Act (the Act), § 505, 33 U.S.C. § 1365 (1976), challenging the unauthorized discharge of oil and solids into the Little Falls Branch stream by the Washington Metropolitan Area Transit Authority (WMATA). Plaintiffs contend that WMATA's failure to obtain discharge permits violated sections 301 and 402 of the Clean Water Act, 33 U.S.C. §§ 1311, 1342.

 Section 301(a) of the Act, 33 U.S.C. § 1311(a), provides:


Except as in compliance with this section and section [] . . . 1342 . . . of this title, the discharge of any pollutant by any persons shall be unlawful.

 Section 1342 establishes a national pollutant discharge elimination system (NPDES) to allow discharge of pollutants, notwithstanding Section 1311(a), to holders of NPDES permits. Section 505 of the Act, 33 U.S.C. § 1365, permits citizens, after giving 60 days notice, to commence a civil action against any person, including a governmental instrumentality or agency, "who is alleged to be in violation of (A) an effluent standard or limitation under this chapter . . . ."

 In January 1982, plaintiffs presented notice of the claimed violations and intent to sue to WMATA, WMATA's contractors, the owners of the Mazza Gallerie shopping center at 5300 Wisconsin Avenue, and the appropriate government agencies, alleging that WMATA's discharge of pollutants without an NPDES permit violated the Act. In addition, plaintiffs, ultimately joined by the owners of the Mazza Gallerie, alleged common law nuisance and negligence causes of action against WMATA for the discharges and odors which deprived plaintiffs of use and enjoyment of the stream and its environs, including parkland, yards, homes and the Mazza Gallerie shopping center.

 The unauthorized discharges came from a WMATA bus yard and the construction site of a subway tunnel along Wisconsin Avenue. Construction of the subway tunnel created cement and rock dust which was discharged, along with diesel fuel, into Little Falls Branch near the intersection of Drummond Avenue and Wisconsin Avenue. The diesel fuel seeped into the subway tunnel from an underground plume of oil formed by leaking underground storage tanks at WMATA's Wisconsin Avenue bus yard. Diesel fuel from this plume also seeped into a sump in the basement of the Mazza Gallerie, from which it was pumped into Jennifer Run Storm Sewer. The oil ultimately entered Little Falls Branch downstream from the tunnel discharge. Oil contained in the runoff from the bus yard and from inadequately run oil/water separators at the bus yard was also discharged into the storm sewer.

 Prior to receipt of the notification, WMATA was aware of the discharge problems and had undertaken a few remedial steps to abate the pollution. It had begun construction of an oil/gravity separator at the tunnel outfall designed to achieve an effluent of 30 mg./1, dug exploratory wells at the bus yard for recovering oil, and recognized responsibility to the Mazza Gallerie for underground oil seepage into its basement. WMATA provided many more commitments to clean up Little Falls Branch in the course of this litigation. See generally, Consent Decree between Plaintiffs and Defendant (filed Oct. 4, 1982); Declaration of Jeffrey G. Miller, paras. 22, 40 (filed Feb. 4, 1983). In contrast to WMATA's original position, a principal objective of the Consent Decree was to eliminate the odor caused by the discharge. Id. at Article VII.

 II. Negotiations and Injunctive Relief

 On March 15, 1982, plaintiffs filed this action. The parties began negotiations to reach a consent decree, but reached an impasse in June 1982 over technical solutions, control of odor, and award of damages and penalties. Several settlement conferences were held in chambers during the summer of 1982.

 In June 1982, plaintiffs sought a preliminary injunction to halt the proposed resumption of a washdown of the subway tunnel track drain which had resulted previously in milky white, sediment-laden discharges into Little Falls Branch. The Court granted a temporary restraining order on June 16 to halt the planned washdown. On June 24, the Court granted a preliminary injunction which permitted the washdown so long as the discharge was diverted into a Washington Suburban Sanitary Commission sewer line.

 III. The Consent Decree

 WMATA and plaintiffs arrived at a settlement, approved and entered by this Court on October 4, 1982 as a consent decree, which required WMATA to address the pollution problem at the bus yard and subway tunnel sources and begin to restore the stream to its pre-discharge condition. WMATA also agreed to pay $ 10,000 damages to the Little Falls Branch Improvement Fund, and plaintiffs' costs of litigation, including reasonable attorney and expert witness fees.

 Several public benefits have resulted from this lawsuit. Among them are WMATA's activities in mapping and managing the underground oil plume so that it will not directly or indirectly contaminate the Little Falls Branch; hiring of an experienced environmental consulting firm to develop and supervise proper remedial plans; developing a spill prevention, control and countermeasures plan for the bus yard; and developing a system to detect leaks in the underground storage tanks at an early time. The difficulty in negotiating the decree was due in part to the complex technical engineering problems involved in this case. See Declaration of Timothy G. Shea (filed March 11, 1983). Plaintiffs have monitored WMATA's compliance by reviewing the numerous reports required by the consent decree.

 IV. Plaintiffs' Entitlement to a Fee Award

 In issuing a final order in any citizens suit under the Clean Water Act, the court may award costs of litigation, including reasonable attorney and expert witness fees, "whenever the court determines such award is appropriate." § 505(d) of the Act, 33 U.S.C. § 1365(d). WMATA does not dispute that reasonable fees are appropriate in this case. See Article VIII of the Consent Decree; Defendant's Brief in Opposition, at 4 (Defendant's Opposition). However, WMATA contends that the number of hours claimed and the hourly rates requested are unreasonable.

 On October 29, 1982, plaintiffs submitted their statement to WMATA in accordance with Article VIII of the Consent Decree for $ 88,344.13. That figure included $ 10,777.50 for attorney fees and $ 185.76 in expenses to the Mazza Gallerie, items not involved in this motion. See Declaration of Jeffrey G. Miller, Exhibit Q (filed Feb. 4, 1983). WMATA offered to pay $ 6,623 of this amount. Id., Exhibit R. Plaintiffs then filed the instant motion for an award of fees and costs in the amount of $ 71,926.40.

 V. Calculation of the Award

 Analysis of an award of attorneys' fees begins with determining the "lodestar" amount. "Any fee-setting inquiry begins with the "lodestar": the number of hours multiplied by a reasonable hourly rate. The figure generated by that computation is the basic fee from which a trial court judge should work." Copeland v. Marshall, 205 U.S. App. D.C. 390, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc). See also National Association of Concerned Veterans v. Secretary of Defense, 219 U.S. App. D.C. 94, 675 F.2d 1319 (D.C. Cir. 1982); Environmental Defense Fund, Inc. v. Environmental Protection Agency, 217 U.S. App. D.C. 189, 672 F.2d 42 (D.C. Cir. 1982).

 A. Hours Expended

 The number of hours reasonably expended involves consideration of the kinds of work performed and whether any actual hours expended were duplicative or nonproductive. Copeland v. Marshall, supra at 891. The actual hours expended by the plaintiffs' three attorneys follow: Actual Hours Expended Jeffrey G. Miller 347.6 hours Angus Macbeth 32.2 hours Matthew Weston-Dawkes 360.5 hours


© 1992-2004 VersusLaw Inc.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.