Citizens Coordinating Committee on Friendship Heights, Inc. v. Washington Metropolitan Area Transit Authority

No. 82-730 (D.D.C. February 23, 1984)

The court awards owners of a shopping center attorneys fees pursuant to the citizen suit provisions of $505 of the Federal Water Pollution Control Act (FWPCA). The property owners had joined suit with a citizens group and individuals challenging the unpermitted discharge of diesel fuel oil and construction wastes into a stream in violation of FWPCA § 402. Plaintiffs also asserted common law claims in negligence, nuisance, and trespass for specific damage to their property. Initially, the court addresses defendant's jurisdictional challenge, ruling that oil is a pollutant and underground storage tanks from which the oil leaked are point sources, making defendant's discharge subject to FWPCA permit and effluent limitation requirements. Next, the court holds that the property owners have asserted sufficient injury in fact on their FWPCA claims to have standing. An assertion of aesthetic injury satisfies the standing requirement. The court then determines that § 505(d) authorizes an award to plaintiffs because of claimants' participation in the settlement negotiations and consent decree, and their success on the merits. The court holds that an attorneys fees award based on an hourly rate of $75 per hour for work prior to March 1, 1982, and $85 per hour for work performed after March 1, 1982, reflects the rate prevailing in the community for similar work. The court also awards expert witness costs to plaintiffs.

[A related decision is published at 14 ELR 20333 — Ed.]

Counsel are listed at 14 ELR 20333.

[14 ELR 20346]

Green, J.:

Memorandum Opinion

This action is before the Court on the motion of plaintiffs Prudential Insurance Company of America and Finsbury Properties, Inc., for costs, including attorney's and expert witness fees and expenses. For the reasons set forth below, the Court grants plaintiffs' motion.

This action was originally filed by the Citizens Coordinating Committee on Friendship Heights, Inc., Town of Somerset, Maryland, certain individual plaintiffs ("the Citizen plaintiffs"), and 5300 Wisconsin Avenue Joint Venture, a joint venture of the Prudential Insurance Company of America and Finsbury Properties, Inc. ("the Mazza plaintiffs"). The Mazza plaintiffs own a piece of property located at 5300 Wisconsin Avenue, N.W., in the District of Columbia, which is commonly known as Mazza Gallerie.

The action was filed on March 15, 1982, under the citizen's suit provision of the Clean Water Act ("the Act"), section 505, 33 U.S.C. § 1365, challenging the unauthorized discharge of oil and solids into the Little Falls Branch stream by the Washington Metropolitan Area Transit Authority ("WMATA"). Plaintiffs also pursued pendent claims of common law negligence, nuisance, and trespass. Those claims primarily involved the nuisance of underground seepage into the basement of Mazza Gallerie, the pollution of ground water beneath the Gallerie, and the nuisance of pollutant discharge into Little Falls Branch which interfered with the use and enjoyment of the stream and its environs.

The unauthorized discharge came from a WMATA bus yard and the construction site of a subway tunnel along Wisconsin Avenue. Construction of the subway tunnel created cement and rock dust which was discharged, along with diesel fuel, into Little Falls Branch near the intersection of Drummond and Wisconsin Avenues, N.W. The diesel fuel seeped into the subway tunnel from an underground plume of oil formed by leaking underground storage tanks at WMATA's Wisconsin Avenue bus yard. Diesel fuel from this plume also seeped into a sump tank in the basement of Mazza Gallerie. This seepage into the sump tank required the owners of Mazza Gallerie to have the ground water removed and hauled away in tank trucks.

After the suit was filed, the parties entered into protracted negotiations to see if they could resolve the problems alleged in the complaint and reach a reasonable settlement. Those negotiations reached an impasse in June of 1982 over technical solutions, control of odor, and award of damages and penalties. Finally, after extensive meetings, a temporary restraining order, and preliminary injunction, the parties arrived at a consent decree.

The consent decree was entered and approved by the Court on October 4, 1982. The decree required WMATA to address the pollution problem complained of and to restore Little Falls Branch stream to its condition prior to the complained of discharges. Defendant also agreed to pay $10,000 in damages to the Little Falls Branch Improvement Fund and pay plaintiffs' costs of litigation, including attorney and expert witness fees.

In the spring of 1982, the Citizen plaintiffs moved for an award of costs and attorney's fees. Although WMATA did not dispute that the Citizen plaintiffs were entitled to reasonable attorney's fees, it did argue that the number of hours claimed and the hourly rates requested were unreasonable.

On May 24, 1983, the Court granted the motion of attorney's fees and awarded plaintiffs $60,936.79 in costs. The Mazza plaintiffs also now move for an award of their costs, including attorneys and expert fees and expenses.¹

II.

The Mazza plaintiffs move for attorney's fees and costs pursuant to section 505(d) of the Act, 33 U.S.C. § 1365(d). Section 505(d) provides in pertinent part: "The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate." 33 U.S.C. § 1365(d).

Defendant opposes Mazza plaintiffs' demand for attorney's fees for the reason that this Court lacks jurisdiction to entertain actions under the "citizen suit" provision of the Act, 33 U.S.C. § 1365. Defendant also argues that even if the Court did have jurisdiction over this matter, the Mazza plaintiffs would not have standing to sue as a citizen under this statute because there was no showing by the Mazza plaintiffs of sufficient injury caused by the unlawful discharge of oil into the stream. This assertion is based on the conclusion that the Mazza plaintiffs' claim in this action centered solely around the common law claims of negligence, nuisance, and trespass caused by oil seeping into the Mazza Gallerie.

The Court will first address the jurisdictional issue argued by defendant. Section 505(a) of the Act provides that "[t]he district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation . . . ." 33 U.S.C. § 1365(a). The definition of "effluent standard or limitation" is provided in section 505(f) of the Act, which states in pertinent part: "For purposes of this section, the term 'effluent standard or limitation under this chapter' means (a) . . . an unlawful act under subsection (a) of section 1311 of this title . . . ." 33 U.S.C. § 1365(f). Section 1311(a) provides that ". . . the discharge of any pollutant by any person shall be unlawful." 33 U.S.C. § 1311(a). The definition of "pollutant" and "discharge of any pollutant" are outlined in section 502(6) and (12) of the Act. Those subsections provide:

(6) The term "pollutant" means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.

(12) The term "discharge of a pollutant" and the term "discharge of pollutants" each means (A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.

[14 ELR 20347]

33 U.S.C. § 1362(6), (12). The definition of "point source" is also located in section 502. It provides:

The term "point source" means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture.

33 U.S.C. § 1362(14).

Defendant first contends that the Court's jurisdiction over this matter is lacking because, although the citizen's suit provision declares a discharge of pollution from a "point source" into navigable waters without a permit to be unlawful, that provision does not declare the discharge of oil to be unlawful. Defendant cites to the specific language of the Act defining pollution. It argues that because the provision is so specific as to the types of pollution covered by the Act, and oil is not listed in that provision, Congress could not have intended to prohibit the discharge of oil under section 505, 33 U.S.C. § 1365.

The court in United States v. Hamel, 551 F.2d 107 [7 ELR 20253] (6th Cir. 1977), specifically addressed the question of whether oil or gasoline was intended by Congress to be within the definition of section 502, 33 U.S.C. § 1362. After extensive analysis of both the statute and the legislative history, it concluded that Congress specifically intended that the definition embrace oil and gasoline. United States v. Hamel, 551 F.2d at 111. The Court finds the Hamel court's reasoning compelling and concurs with its conclusion that the "interpretation of water pollution legislation [should] be given a generous rather than a niggardly construction." Id. at 112.

WMATA also contends that the Court lacks jurisdiction because the discharge of oil was not from a "point source." It argues that because the pollution did not emanate from a "discernible, confined and discrete conveyance," 33 U.S.C. § 1362(14), the Court does not have the power to decide this matter. To accept this reasoning would be to ignore the express language of section 502(14) which defines "point source" as "any discernible, confined and discrete conveyance, including . . . discrete fissure, container . . . from which pollutants are or may be discharged." 33 U.S.C. § 1362(14). There is no argument that WMATA's oil tanks were the origin of the oil discharge. Therefore, under the definition of the Act those discharges are the "point source" which the pollution occurred.²

WMATA's second argument is that even if the Court does have jurisdiction over this action, the Mazza plaintiffs lack standing to pursue claims under the Act because there is no showing of sufficient injury. Defendant notes that the Act requires that only those citizens "having an interest which is or may be adversely affected," 33 U.S.C. 1365(g), may bring an action. WMATA argues that the Mazza plaintiffs have no such interest. It asserts that the factual allegations in the complaint are insufficient to confer standing and that the Mazza plaintiffs' only cognizable claims were those of common law tort and nuisance.

The Mazza plaintiffs make the following allegations in the complaint:

8 . . . . Prudential and Finsbury are joint venturers in the 5300 Wisconsin Avenue Joint Venture ("Joint Venture"), which owns the property situated at 5300 Wisconsin Avenue, N.W., Washington, D.C. 20015, otherwise known as Mazza Gallerie. Because the Mazza Gallerie is a shopping center whose reputation and attractiveness to customers stems from the attractive condition of its surrounding [sic], including the Little Falls Branch, Prudential and Finsbury have been damaged by defendant's unlawful pollutant discharges . . . .

16. Defendant's discharges of diesel fuel and other pollutants described in the preceding paragraphs have caused Little Falls Branch to be polluted, spoiled, and defaced. As a result, the CCCFH and its members and Somerset and its citizens, including the individual plaintiffs, living in proximity to the stream have experienced noxious odors, have not been able to use the stream for recreational purposes, have had the enjoyment of their property decreased, and have been harmed in other ways. In addition, Prudential and Finsbury, as owners of the Mazza Gallerie, have been damaged because the area in which the Mazza Gallerie is situated has become less pleasant and attractive.

Plaintiffs' Complaint PP8, 16. Defendant argues that these allegations alone do not support the notion that Mazza plaintiffs have standing. It claims that "injury in fact" is required to confer standing and that mere concerns about the "aesthetic conditions in the area" do not satisfy that requirement. Defendant's Brief in Opposition to Motion of the Mazza Plaintiffs for Costs at 7.

Defendant misapplies the "injury in fact" test. The Court notes that "injury in fact" does not require that the injury be an economic one. The injury may also involve aesthetic, recreational, conservational, safety, or health interests. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 738 [2 ELR 20192] (1972).

The party who invokes the court's authority [must] "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979), and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision," Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 (1976).

Valley Forge College v. Americans United, 454 U.S. 464, 472 (1982).

In applying this standard it is plain from the complaint that the Mazza plaintiffs have shown that they have suffered some actual injury caused by the illegal discharge of oil into Little Falls Branch stream. Specifically, they claim that there has been damage to the aesthetic atmosphere of the surrounding Friendship Heights community, making their property less desirable. In addition, because of the consent decree, the Mazza plaintiffs will enjoy the benefits of added attractiveness to the area surrounding the gallerie. Here, as in similar cases, the "injury in fact" requirement is satisfied by asserting aesthetic injury.See Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 73-74 [8 ELR 20545] (1978) (standing for those who assert environmental and aesthetic consequences); United States v. S.C.R.A.P., 412 U.S. 669, 686-88 [3 ELR 20536] (1973) (claimed harm to use and enjoyment of natural resources in Washington area sufficient to have standing); Montgomery Environmental Coalition v. Costle, 646 F.2d 568, 578 [11 ELR 20211] (D.C. Cir. 1980) (in suit for abatement of pollution, injury in fact requirement satisfied where plaintiff members included residents of Virginia, Maryland, and the District of Columbia "by whose shores the Potomac River flows"). Therefore, standing is conferred on the Mazza plaintiffs for their claims under the Act.

III.

The Court must now determine whether "such an award is appropriate," 33 U.S.C. § 1365(d), and if appropriate, in what amount. Because of the Mazza plaintiffs' undisputed participation in the settlement negotiations and consent decree and they were successful on the merits, the Court concludes that an award is appropriate in this action.

In addressing an actual award, WMATA takes issue with the hourly rate of compensation proposed by counsel for the Mazza plaintiffs and with the expert witness fees.³

Although it does not argue with the number of hours claimed by Mazza plaintiffs' counsel, Waldemar J. Pflepsen, Esq., WMATA believes that the hourly rate proposed by Mazza plaintiffs [14 ELR 20348] should not exceed that which was paid to Matthew Weston-Dawkes, Esq., attorney for the Citizen plaintiffs. The Court in its May 24, 1983 memorandum opinion, granted Mr. Weston-Dawkes an hourly rate of $75 an hour for work performed prior to March 1, 1982, and $85 an hour after that date, which it determined to be reasonable given "the skill involved in negotiating the consent decree; the difficulty in framing a legal theory and fashioning an appropriate remedy under the Clean Water Act . . . ." Memorandum Opinion, May 24, 1983, at 16 ("Memorandum Opinion").

To determine the reasonable hourly rate when awarding attorney's fees, the Court must look to that rate "prevailing in the community for similar work." Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1980). The Court relied on those standards when it determined the appropriate hourly rate for Mr. Weston-Dawkes, attorney for Citizens plaintiffs. See Memorandum Opinion at 15-16. Submitted in Mr. Weston-Dawkes' declaration was an attorney survey outlining hourly rates for attorneys of comparable experience. That survey was also used by Mr. Pflepson to justify the compensation rates that he requests. No other survey or documentation concerning comparable rates for attorneys with comparable experience was submitted by the Mazza plaintiffs' counsel. Therefore, Mr. Pflepsen's compensation rate shall be equivalent to that of Mr. Weston-Dawkes: $75 an hour for work performed prior to March 1, 1982, $85 for work performed after March 1, 1982.

WMATA also contends that any reimbursement of expert witness fees is not justified. It argues that if the experts were hired by the Citizen plaintiffs, but paid for by the Mazza plaintiffs because of the Citizens plaintiffs' inability to pay, those costs should have been presented in the Citizen plaintiffs' motion for costs. It also argues that the Mazza plaintiffs failed to demonstrate that the experts did in fact contribute towards the negotiations for the consent decree.

Defendant's argument concerning the issue of who should have actually presented the expert fees to the Court for reimbursement is immaterial. Although the Citizen plaintiffs could have pursued these fees in their own motion and then reimbursed the Mazza plaintiffs for those expenses, the failure to pursue those costs does not affect the Mazza plaintiffs' right to be reimbursed.

On the issue of whether the Mazza plaintiffs' experts contributed to the eventual consent decree settlement, the Court finds that they did contribute to the settlement. The court bases this determination on the extensive affidavit of witness expert, James E. Shirk, filed in plaintiffs' motion for temporary restraining order. In that declaration, plaintiffs' expert outlined in detail the pollution problem of Little Falls Branch and listed several alternatives for preventing said pollution. In addition, the Court looks to the Citizen plaintiffs' attorney's timesheets which document meetings and consultations with plaintiffs' expert.Therefore, the Court concludes that the expert fees which the Mazza plaintiffs request should be rewarded in their entirety.

Conclusion

The Court is unable to make an accurate determination as to the total fees to be awarded the Mazza plaintiffs because counsel has not provided the Court with monthly summary of the hours expended in this matter. The Court therefore expects the parties, in accordance with this opinion, to work out the actual amount of fees owed without the need for further guidance.

The following chart should be of some assistance:

Hourly Hours

Attorney Rate Expended Amount

Waldemar Pflepsen ^* $75/85 131.3 ^**

Out-of-pocket expenses paid by Mazza plaintiffs $36.00

Expert Witness Fees 7,086.96

Expert Witness Expenses 1,901.11 $8,988.07

TOTAL REQUESTED ^**

In accordance with the above, the Court grants the Mazza plaintiffs' motion for attorney's and expert fees and costs.

An appropriate order is attached.

Order

Upon consideration of the motion of plaintiffs Prudential Insurance Company of America and Finsbury Properties, Inc., for costs, including attorney's and expert witness fees and expenses, defendant's opposition thereto, plaintiffs' reply to defendant's opposition thereto, the entire record herein, and for the reasons stated in the accompanying memorandum opinion, it is by the Court this 22nd day of February 1984,

ORDERED that plaintiffs' motion for reasonable attorney's and expert witness fees and costs is granted; it is further

ORDERED that plaintiffs are awarded reasonable attorney's fees, the actual amount to be worked out by the parties in accordance with the terms outlined in the accompanying memorandum opinion; it is further

ORDERED that plaintiffs are awarded $8,988.07 in expert witness costs, and $36.00 in general out-of-pocket expenses; and it is further

ORDERED that defendant shall pay the total sum to Mazza plaintiffs by check payable to their attorney Finley, Kumble, Wagner, Heine, Underberg, Manley & Casey, within 45 days after entry of this order.

1. For a more detailed explanation of the facts in this matter, see Memorandum Opinion, May 24, 1983, at 1-6.

2. The Court is puzzled by defendant's assertion that jurisdiction is lacking particularly in light of WMATA's participation in the consent decree and its agreement that the Citizen plaintiffs were entitled to attorney's fees. See Memorandum Opinion, May 24, 1983, at 6. The Court will not, however, address these inconsistencies.

3. Because defendant does not dispute the number of hours claimed by the Mazza plaintiffs' attorney, nor take issue with the out-of-pocket expenses, the Court need not delve into these issues as they remain uncontested.

* $75/hour for those hours expended prior to March 1, 1982

$85/hour for those hours expended after March 1, 1982

** Because nothing in the papers indicate the actual time spent in this matter prior to and after March 1, 1982, the Court is unable to provide either a final figure for attorney's fees or the total amount of fees to be awarded.