ELR Citation: ELR 20712
No(s). s. G-90-317 et al (S.D. Tex. Jan 4, 1994)

The court holds that owners of surface and royalty interests in an oil field are entitled to recover an interim award of over $328,000 in attorney fees under the Oil Pollution Act (OPA) in an action against past and current operators of the field that allegedly contaminated the surface of the field and the subsurface freshwater supply of the area. The court first holds that the owners may not recover their attorney fees under the Federal Water Pollution Control Act (FWPCA). Although their claims may fall within the FWPCA, the owners did not present evidence to support such a claim. Moreover, the court does not have jurisdiction over this action under the FWPCA because the owners did not provide the U.S. Environmental Protection Agency, the state, and the defendant with notice of their intention to sue at least 60 days prior to commencing this action. The court holds that the Texas Oil Spill Prevention and Response Act of 1991 (TOSPRA) does not provide for the recovery of attorney fees and expenses. Although not a bar to the OPA case of action, TOSPRA does not create a private cause of action for private parties against covered polluters. The court next holds that the owners may recover attorney fees as removal costs under the OPA. Although the Act does not explicitly use the phrase "attorneys fees" in describing a private claimants' rights to recovery, attorney fees can properly be taxed as removal costs under the OPA. The court finds that the expenses the owners incurred were for actions consistent with the national contingency plan and, thus, the owners are entitled to recover these expenses as removal costs. Moreover, the OPA's comprehensive statutory structure demands that the expenses the owners incurred in enforcing the OPA's provisions necessarily include their reasonable litigation expenses, including attorney fees. The court holds that under OPA §1017(f)(2), it is not a prerequisite to recovery that plaintiffs' claims reach final adjudication, or even that they be judged prevailing parties. The court holds that the attorney fees of $300 per hour is reasonable and that the time the attorney devoted to the case is reasonable based on the number of and geographical area covered by the oil wells at issue, the complexity of the legal questions at issue, and the extent and difficulty of discovery in this case. The court holds, however, that §1017(e) precludes awarding the owners removal costs incurred prior to the OPA's enactment date. The court awards over $328,000 in fees and over $315,000 in expenses to the owners.

Counsel for Plaintiffs
Michael M. Todaro
One Riverway, Ste. 1700, Houston TX 77056
(713) 225-2223

Counsel for Defendants
Alton J. Hall
Wickliff & Hall
First Interstate Bank Plaza
1000 Louisiana, Ste. 4500, Houston TX 77002
(713) 750-3100