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Armstrong v. ASARCO, Inc.

ELR Citation: 28 ELR 21001
Nos. 96-3277, 138 F.3d 382/46 ERC 1471/(8th Cir., 03/09/1998)

The court pursuant to §505(d) of the Federal Water Pollution Control Act (FWPCA) affirms the award of litigation costs to plaintiffs for work reasonably related to the results obtained from their FWPCA citizen suit against a lead refinery. After the plaintiffs filed their FWPCA citizen suit, the U.S. Environmental Protection Agency (EPA) filed a similar suit, and the two lawsuits were consolidated. After a hearing on plaintiffs' motion for a preliminary injunction, the district court entered a consent decree between EPA and the refinery as a final judgment and never ruled on the preliminary injunction motion. The court first holds that plaintiffs are prevailing parties. Plaintiffs played the role of catalyst and private attorney general, just as Congress envisioned, thereby successfully contributing to the refinery's remediation efforts and eventual settlement with EPA.

The court next holds that the district court did not abuse its discretion in awarding plaintiffs' litigation costs for work related to the motion for a preliminary injunction through completion of the hearing. Plaintiffs' effort to obtain a preliminary injunction was not a failure simply because the district court never actually ruled on the motion. It appears that the very threat of a possible court-imposed injunction shutting down the facility—and the perceived need to undermine plaintiffs' irreparable harm argument—motivated the refinery to implement and maintain interim treatment measures to reduce effluent levels prior to the hearing date. In addition, the hearing on the motion for a preliminary injunction created a judicial record of the refinery's history of noncompliance and presumably also assisted the district court's evaluation of the proposed consent decree. The court, however, reverses the award of any litigation costs incurred in relation to the motion for a preliminary injunction after the hearing was completed, because these costs were not reasonably related to the results obtained.

The court next affirms the award of litigation costs for plaintiffs' efforts related to the consent decree, to the extent that such costs were incurred on or before the day EPA lodged the proposed consent decree with the district court. The facts suggest that plaintiffs' early efforts did beneficially contribute directly and indirectly to the process from which the consent decree evolved. The court then holds that the district court abused its discretion insofar as it awarded plaintiffs their litigation costs for work in opposition to the entry of the consent decree because such work was not reasonably related to the results obtained. Last, the court holds that the refinery is not entitled to any relief on appeal for inadequacy of the district court's explanation. The district court clearly considered the relationship between the amount of the fee awarded and the results obtained.

Counsel for Plaintiffs
Luke J. Danielson
Pendleton, Friedberg, Wilson & Hennessey
17th & Grant Bldg.
303 E. 17th Ave., Ste. 1000, Denver CO 80203
(303) 839-1204

Counsel for Defendant
Steven E. Guenzel
Barlow, Johnson, Flodman, Sutter, Guenzel & Eske
1227 Lincoln Mall, P.O. Box 81686, Lincoln NE 68501
(402) 475-4240

Before Ross and Fagg, JJ.