Citizens Coordinating Committee on Friendship Heights, Inc. v. Washington Metropolitan Transit Authority, 84-5174

• Decision Date: 05 July 1985
• Docket Number: No. 84-5174,84-5174
• Citation: 765 F.2d 1169
• Parties: , 247 U.S.App.D.C. 15, 15 Envtl. L. Rep. 20,652 CITIZENS COORDINATING COMMITTEE ON FRIENDSHIP HEIGHTS, INC., et al. v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1169

765 F.2d 1169

22 ERC 2258, 247 U.S.App.D.C. 15, 15

Envtl. L. Rep. 20,652

CITIZENS COORDINATING COMMITTEE ON FRIENDSHIP HEIGHTS, INC., et al. v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Appellant.

No. 84-5174.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 10, 1985.

Decided July 5, 1985.

As Amended July 5, 1985.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-00730); June L. Green, Judge.

Frank R. Filiatreau, Jr., Washington, D.C., with whom Robert L. Polk, Washington, D.C., was on brief, for appellant. William B. Bircher, Washington, D.C., entered an appearance for appellant.

Waldemar J. Pflepsen, Jr., Washington, D.C., was on brief, for appellees.

Before TAMM and BORK, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BORK.

BORK, Circuit Judge:

This case involves the question whether a corporation alleging aesthetic injury and damages under common law tort theories, under which it would not be entitled to recover litigation costs, can, by joining a suit under section 505 of the Clean Water Act, 33 U.S.C. Sec. 1365 (1982), claim reimbursement of costs, including attorneys' fees and expert witness expenses.

I.

The Washington Metropolitan Area Transit Authority ("WMATA") bus yard facilities located in the Friendship Heights neighborhood of the District of Columbia include an underground fuel storage tank system. Prior to 1978 this system had leaked large quantities of diesel fuel, creating an underground plume of the fuel. By January, 1978, the plume had reached the WMATA subway tunnel and station at Friendship Heights. The fuel entered the ground water collection sump in the tunnel near Drummond Avenue in Maryland, a short distance from the subway station. This collection sump, in turn, emptied into the Little Falls Branch, a stream running through Friendship Heights and the Town of Somerset, Maryland.

WMATA had also allowed oil, diesel fuel, and other pollutants to run into the Jeniver Run storm sewer. This storm sewer, once a free flowing surface stream, transports its contents to the Little Falls Branch. WMATA has never obtained a permit to discharge pollutants into Little Falls Branch.

By July 1981, the diesel fuel plume reached the ground water collection system beneath the Mazza Gallerie shopping mall and entered the system's sump tank. ¹ The sump was designed to discharge into the Jenifer Run storm sewer. To prevent pollution of the storm sewer, Mazza Gallerie had to pump out the diesel fuel and haul it away in tank trucks. Diesel fuel also continued to collect in one of the mall's elevator pits, causing an offensive odor. Mazza Gallerie had to install an auxiliary sump pump system and also replace certain elevator equipment.

In October, 1981, Mazza Gallerie made demand upon WMATA for reimbursement of expenses incurred in remedying the pollution of its property. Record Excerpts ("R.E.") at 97. These demands were reiterated in December, 1981, along with a demand that WMATA cease polluting Mazza Gallerie's property. R.E. at 95-96. It is noteworthy that Mazza Gallerie did not complain of pollution to Little Falls Branch or any pollution that would constitute a Clean Water Act violation. Nor did Mazza Gallerie ever serve the notice required by the Act before a suit may be filed for a violation.

On January 8, 1982, however, the Town of Somerset, Maryland, Citizens Coordinating Committee on Friendship Heights, Inc., Mr. and Mrs. Matthew Fink, and Mr. and Mrs. Amos T. Wilder served notice pursuant to section 505(b) of the Clean Water Act, 33 U.S.C. Sec. 1365(b) (1982), of the pollution of Little Falls Branch without permits required by law. R.E. at 8-17. At the end of the mandatory 60-day notice period, these parties filed suit in district court alleging violation of section 301(a) of the Clean Water Act, 33 U.S.C. Sec. 1311(a) (1982), common law negligence, trespass, and nuisance. Mazza Gallerie joined as a party plaintiff, thus, for the first time, purporting to assert a right under section 505 as well as asserting common law tort claims. The complaining parties, including Mazza Gallerie, sought damages, injunctive relief, civil penalties and costs, including attorneys' fees. But Mazza Gallerie's only specific request for relief--reimbursement for costs associated with the pollution of Mazza Gallerie property--related to the tort claims and not to Clean Water Act violations. R.E. at 18-30.

After suit was filed, the parties began negotiations aimed at settlement. To assist in the negotiations, both sides engaged expert assistance. The expert hired by the plaintiffs was paid by Mazza Gallerie, allegedly because it was the only plaintiff capable of assuming this expense.

Eventually, on October 4, 1982, the parties entered into a court approved consent decree, which required WMATA to prevent discharges into Little Falls Branch and restore that stream to its pre-discharge condition. R.E. at 36-54. The decree also required WMATA to pay damages caused by the migration of oil into Mazza Gallerie's property. The decree further provided that WMATA would "pay to the Plaintiffs their costs of litigation (including reasonable attorney and expert witness fees) in accordance with Section 505(d) of the Clean Water Act." R.E. at 50. It was clear, therefore, that the decree left the law of costs where it was: costs were recoverable for litigation about Clean Water Act violations but not for the litigation of tort claims. The plaintiffs filed motions for those costs.

With respect to the citizen plaintiffs, WMATA contested only the reasonableness of the number of hours and hourly rates charged. The district judge awarded $60,936.79 of the $71,926.40 requested. R.E. at 137-38. However, WMATA challenged the entire request of Mazza Gallerie for $21,115.07. This amount included $8,988.07 for expert witness costs, and the remainder for other costs and attorneys' fees. WMATA argued that the district court lacked jurisdiction over Mazza Gallerie's claims under the Clean Water Act, since Mazza Gallerie was not a "citizen" under the Act, and therefore did not have standing to sue. Mazza Gallerie contended that it had standing because it had suffered "injury in fact" by virtue of the diesel fuel leaking onto its property and that it had also suffered aesthetic injury. It claimed, in any event, that the Clean Water Act provided for awards of cost to "any party." Even if it was only a pendent party, therefore, it should receive its costs. R.E. at 104-19.

The district court agreed that Mazza Gallerie had suffered actual injury because "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." R.E. at 148. After some adjustments, the district judge awarded $19,994.57 of the $21,115.07 requested. Id. at 154-57. It is from this award that WMATA appeals.

II.

Section 505(a) of the Clean Water Act provides that,

any citizen may commence a civil action on his own behalf--

(1) against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation,....

33 U.S.C. Sec. 1365(a) (1982) (emphasis added). A "citizen" is defined by the Act as "a person or persons having an interest which is or may be adversely affected." 33 U.S.C. Sec. 1365(g).

The legislative history of the Act indicates that Congress intended to use the "injury in fact" rule for standing as defined in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). S.Conf.Rep. No. 1236, 92d Cong., 2d Sess. 146, reprinted in 1972 U.S.Code Cong. & Ad.News 3668, 3776, 3823; see Montgomery Environmental Coalition v. Costle, 646 F.2d 568, 576-77 (D.C.Cir.1980). To have standing under the Clean Water Act, therefore, a party must allege a specific injury to his interest that can be redressed by the statute. In the complaint, Mazza Gallerie alleged the following injuries:

Because the Mazza Gallerie is a shopping center whose reputation and attractiveness to customers stems from the attractive condition of its surrounding, including the Little Falls Branch, [Mazza Gallerie has] been damaged by defendant's unlawful pollutant discharges. [Mazza Gallerie has] also been damaged as a result of the seepage of ground water contaminated with diesel fuel into the basement of the Mazza Gallerie as a result of defendant's operation of the bus yard....

....

[Mazza Gallerie has] been damaged because the area in which the Mazza Gallerie is situated has become less pleasant and attractive.

R.E. at 21, 25. Mazza Gallerie thus claimed injury from the pollutant discharges into a stream approximately half a mile from its premises and from seepage of pollutants into its basement. We think it had standing under the Clean Water Act to complain of neither.

It might be contended that Mazza Gallerie had standing to complain of discharges into the stream as an economic injury. Perhaps that would have been so but Mazza Gallerie has consistently treated this allegation as noneconomic, as claiming aesthetic damage. Nowhere in the paragraph cited or elsewhere in the complaint does Mazza Gallerie state actual damages, that it has lost business, that any customer chose not to shop at the mall, or that the value of its property had declined. No money damages were claimed for the discharge into Little Falls Branch. Moreover, the district court did not treat this allegation as one of economic injury but rather as one of aesthetic injury. That is also the way Mazza Gallerie argues the case to us.

WMATA now argues, for the first time, that the injury to the interest of the Joint Venture...