Fishel v. Westinghouse Elec. Corp.
Citation: 17 ELR 20465
No. No. 85-0216, (M.D. Pa., 12/12/1986) Attorneys fees denied, civil penalty imposed
The court holds that the imposition of a $10,000 civil penalty against one codefendant found in violation of the Resource Conservation and Recovery Act (RCRA) and the Federal Water Pollution Control Act (FWPCA) is reasonable taking into account the factors enumerated in the Environmental Protection Agency's (EPA's) Civil Penalty Policy (Policy), but declines to award the plaintiffs attorneys fees under RCRA and the FWPCA. The court holds that attorneys fees are not yet appropriate because there is no final order in the action, pending the resolution of common law claims, and because the plaintiffs have not achieved some degree of success on the merits under FWPCA or become a substantially prevailing party under RCRA. The court holds that, with respect to the one codefendant found in violation of FWPCA and RCRA, some civil penalty must be imposed, and that a $10,000 penalty is sufficient to serve the goal of deterrence and to remove the codefendant's economic benefit from noncompliance. The court holds that the maximum penalty under the EPA Policy is not necessary, taking into account the codefendant's cooperation with governmental authorities prior to the initiation of the lawsuit. The court notes, however, that the penalty amount may be reduced if the codefendant makes a sufficient evidentiary showing of an inability to pay.
[Related opinions appear at 16 ELR 20001 and 20634.]
Counsel for Plaintiffs
Albert J. Slap, Rex F. Brien
Slap, Williams & Cuker
Suite 960, One Franklin Plaza, Philadelphia PA 19102
Counsel for Defendants
Terry R. Bossert
McNees, Wallace & Nurick
100 Pine St., P.O. Box 1166, Harrisburg PA 17108