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Pound v. Airosol Co.

ELR Citation: 37 ELR 20209
Nos. No. 06-3299, (10th Cir., 08/20/2007)

The Tenth Circuit reversed and remanded a lower court decision declining to impose a monetary penalty against an insecticide manufacturer for Clean Air Act (CAA) violations. A competitor company filed a citizen suit against the manufacturer for manufacturing, selling, and distributing an insecticide that contains hydrochlorofluorocarbons, an ozone-depleting substance. The lower court concluded that the manufacturer's actions were in violation of CAA §610(d)(1)(A), but it refused to penalize the company for those violations or to award the competitor attorney fees, relying heavily on its conclusion that the suit was brought to remove a competitor from the market and not out of a concern for the environment. The appellate court reversed. The lower court erred as a matter of law in its penalty assessment. It failed to consider all the necessary statutory factors in a CAA penalty analysis, considered some factors it ought not to have considered, and improperly applied some of those factors it did consider. The lower court also abused its discretion and erred in its attorney fee analysis because it did not consider whether the competitor company achieved some degree of success on the merits. It also erred by concluding that a party bringing a CAA claim is disqualified from receiving attorney fees solely because it is an economic competitor of the alleged violator.