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Davis County Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA

ELR Citation: 29 ELR 20627
Nos. 95-1611, 169 F.3d 755/(D.C. Cir., 02/26/1999) Claim for litigation costs remanded

The court remands a municipality's request for litigation costs relating to its successful challenge of a U.S. Environmental Protection Agency (EPA) Clean Air Act (CAA) rule establishing new source performance standards for the combustion of municipal solid waste. The court first holds that the municipality can recover its technical consultant's fees only to the extent that the fees reflect the time necessary for the preparation of the consultant's affidavits. The CAA's litigation costs provision explicitly includes expert witness fees, but it does not cover claims for a technical consultant that aids in preparing a case. The court next creates an exception to the forum-rate rule for calculating attorneys fees and holds that the municipality's attorney fee award should be based on Utah rates rather than on District of Columbia rates. This exception applies out-of-town rates when the bulk of the work is done outside the court's jurisdiction and when the forum-rate is substantially higher than the out-of-town rate. Consequently, the municipality, which hired a Salt Lake City, Utah, law firm, cannot base its attorney fees calculations on D.C. rates under the facts of the case. The court then holds that the total number of hours claimed by the municipality for attorney fees seems unreasonably high. Therefore, the court remands the petition to EPA for the parties to renew negotiations.

[Prior decisions in this litigation are published at 27 ELR 20476 and 20729.]

Counsel for Petitioner
David P. Novello
Freedman, Levy, Kroll & Simonds
1050 Connecticut Ave. NW, Ste. 825, Washington DC 20036
(202) 457-5151

Counsel for Respondent
John A. Sheehan
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Wald, Ginsburg, and Randolph, JJ.