Northeast Iowa Citizens v. Agriprocessors, Inc.

• Decision Date: 06 June 2007
• Docket Number: No. 04-CV-1037-LRR.,04-CV-1037-LRR.
• Citation: 489 F.Supp.2d 881
• Parties: NORTHEAST IOWA CITIZENS FOR CLEAN WATER, Plaintiff, v. AGRIPROCESSORS, INC., Defendant. United States of America, Plaintiff, and Northeast Iowa Citizens for Clean Water, Intervenor-Plaintiff, v. AgriProcessors, Inc., Defendant.
• Court: U.S. District Court — Northern District of Iowa

Page 881

489 F.Supp.2d 881

NORTHEAST IOWA CITIZENS FOR CLEAN WATER, Plaintiff, v. AGRIPROCESSORS, INC., Defendant.

United States of America, Plaintiff, and Northeast Iowa Citizens for Clean Water, Intervenor-Plaintiff, v. AgriProcessors, Inc., Defendant.

No. 04-CV-1037-LRR.

United States District Court, N.D. Iowa, Eastern Division.

June 6, 2007.

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Robert M. Butler, U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.

Debra Lynne Hulett, Jay Eaton, Nyemaster Goode Voigts West Hansell & O'Brien, PC, Des Moines, IA, for Defendant.

Lawrence P. McLellan, Sullivan & Ward, PC, West Des Moines, IA, for Intervenor-Plaintiff.

ORDER

READE, Chief Judge.

TABLE OF CONTENTS

I. INTRODUCTION ............................................................886 II. BACKGROUND ..............................................................886 A. Factual Background ..................................................886 B. Procedural Background ...............................................886 1. NICCW's Complaint ...............................................886 2. United States's Complaint .......................................887 3. Intervention ....................................................887 4. Consolidation ...................................................887 5. AgriProcessors's Answers to the Complaints ......................887 6. Consent Decree ..................................................887 7. Application .....................................................888 III. STATUTORY FRAMEWORK .....................................................888 IV. SHOULD THE COURT AWARD NICCW LITIGATION COSTS? ..........................889 A. Is NICCW a "Prevailing or Substantially Prevailing Party"? ..........889 1. Armstrong .......................................................889 2. Buckhannon ......................................................890 3. Sierra Club .....................................................891 4. Analysis ........................................................891 B. Is an Award of Litigation Costs "Appropriate"? ......................894 C. Conclusion ..........................................................897 V. WHAT AMOUNT OF LITIGATION COSTS SHOULD THE COURT AWARD? .................................................................897 A. Costs ...............................................................898 1. Exhibit A .......................................................898 2. Exhibit C .......................................................899 3. Sum of litigation costs except attorney fees ....................899 B. Attorney Fees .......................................................899 1. Background ......................................................899 2. General Principles ..............................................900 3. Analysis ........................................................901 a. Reasonable rate .............................................901 b. Hours reasonably expended ...................................901

                c.  Lodestar ....................................................903
                              d.  Degree of success ...........................................904
                      C.  Award ...............................................................904
                 VI.  DISPOSITION .............................................................905
                

I. INTRODUCTION

The matter before the court is Plaintiff/Intervenor-Plaintiff Northeast Iowa Citizens for Clean Water's ("NICCW") Application for Attorney Fees and Costs ("Application") (docket no. 68).

II. BACKGROUND

A. Factual Background¹

The City of Postville, Iowa ("City") held a National Pollution Discharge Elimination System ("NPDES") permit ("Permit") for a Publicly Owned Treatment Works ("POTW"). The State of Iowa issued the Permit to the City pursuant the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq.² The POTW was a four-cell lagoon system. It discharged into Hecker Creek, and then to the Yellow River, in northeastern Iowa.

Defendant AgriProcessors, Inc. ("AgriProcessors") owns and operates a kosher meat processing plant ("Plant") in the City. Pursuant to an agreement ("Treatment Agreement") with the City, AgriProcessors discharged wastewater into the POTW. The State of Iowa reviewed and approved the Treatment Agreement.

The Permit and the Treatment Agreement limited what AgriProcessors could release into the POTW ("pretreatment effluent limitations") and what the City could release into Hecker Creek ("final effluent limitations"). There were pretreatment effluent limitations on flow, five-day biochemical oxygen demand ("BOD₅"), total suspended solids ("TSS"), pH, chlorides, and oil and grease. There were final effluent limitations on flow, five-day carbonaceous biochemical oxygen demand ("CBOD₅"), TSS and pH.

B. Procedural Background

1. NICCW's Complaint

On October 1, 2004, NICCW, a local environmental group, filed a two-count Complaint ("NICCW's Complaint") against AgriProcessors. The Clerk of Court filed NICCW's Complaint in Case Number 04-CV-1037-LRR (N.D.Iowa Oct. 1, 2004) ("NICCW's Lawsuit").

Count 1 of NICCW's Complaint alleged that AgriProcessors repeatedly violated and was continuing to violate the CWA. Specifically, NICCW alleged that AgriProcessors and the City had repeatedly violated and were continuing to violate the pretreatment effluent limitations and final effluent limitations in the Treatment Agreement and the Permit. Count 2 alleged that AgriProcessors stored and applied paunch waste without a permit, in violation of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq. It also alleged that AgriProcessors maintained an open dump, in violation of Iowa Code § 455B.307 (2003).

NICCW sought a declaratory judgment that AgriProcessors had violated and was in violation of the CWA and the RCRA injunctive relief, civil penalties and litigation costs.

2. United States's Complaint

On December 1, 2004, the United States of America ("United States"), on behalf of the Environmental Protection Agency ("EPA"), filed a Complaint ("United States's Complaint") against AgriProcessors. The Clerk of Court filed the United States's Complaint in Case Number 04-CV-1050-LRR (N.D.Iowa Dec. 1, 2004) ("United States's Lawsuit")

Count 1 of the United States's Complaint alleged that AgriProcessors exceeded pretreatment effluent limitations for flow, BOD₅, TSS and chlorides, in violation of the CWA. Count 2 alleged that AgriProcessors caused the City to exceed its final effluent limitations for flow, CBOD₅, TSS and pH, in violation of the CWA. Counts 3, 4, and 5 alleged various violations of the Emergency Planning and Community Right-to-Know Act ("EPCRA"), 42 U.S.C. § 11001 et seq., and the Clean Air Act ("CAA"), 42 U.S.C. § 7470 et seq.

The United States sought injunctive relief and civil penalties against AgriProcessors.

3. Intervention

On January 4, 2005, NICCW filed a Motion to Intervene into the United States's Lawsuit. On January 7, 2005, the court granted the Motion to Intervene, see 33 U.S.C. § 1365(b)(1)(B), and NICCW became an intervenor-plaintiff in the United States's Lawsuit.

4. Consolidation

On December 14, 2004, NICCW filed a Motion to Consolidate the United States's Lawsuit with NICCW's Lawsuit. On January 11, 2005, the court granted the Motion to Consolidate, see Fed.R.Civ.P. 42(a), and the United States's Lawsuit and NICCW's Lawsuit were consolidated under Case Number 04-CV-1037-LRR.

5. AgriProcessors's Answers to the Complaints

On April 7, 2005, AgriProcessors filed an Answer to the United States's Complaint. On April 12, 2005, AgriProcessors filed an Answer to NICCW's Complaint. AgriProcessors denied the substance of both complaints.

6. Consent Decree

On April 25, 2005, the court set a bench trial on both the United States's Complaint and NICCW's Complaint for the two-week period beginning on October 16, 2006. On August 14, 2006, however, the United States and AgriProcessors notified the court that they had "reached an agreement in principle and [were] in the final stages of negotiating a proposed [c]onsent [d]ecree [("Consent Decree")] that [they] anticipate[d] lodging with the [c]ourt in the near future." Joint Status Statement (docket no. 41), at 1. The United States and AgriProcessors indicated that the Consent Decree "would resolve all claims in the [United States's] Complaint...." Id.

On August 31, 2006, the United States lodged the Consent Decree with the court. The Consent Decree proposed that AgriProcessors (1) pay a cash penalty of nearly $600,000 to the United States Treasury; (2) spend over $12,000 on a supplemental environmental project; and (3) conduct and follow-up with environmental compliance audits at the Plant and another facility that AgriProcessors owned in Nebraska. The Consent Decree also contained stipulated penalties for non-compliance.

On October 12, 2006, the United States filed a Motion to Enter Proposed Consent Decree ("Motion to Enter"). On October 26, 2006, NICCW filed a resistance. NICCW's primary objection to the Consent Decree was that its proposed civil penalty was too low.

On November 29, 2006, the court found that the Consent Decree was "procedurally and substantively fair, reasonable and adequate," granted the Motion to Enter and directed the Clerk of Court to "close th[e] case."³ Order (docket no. 62), at 16. On the same date, the court separately signed and filed the Consent Decree.

7. Application

On January 22, 2007, NICCW filed the Application. On February 1, 2007, the United States notified the court that it did not resist the Application, because "such matter is between NICCW and [AgriProcessors]." Response (docket no. 69), at 1. On February 8, 2007, AgriProcessors filed a Resistance. On February 16, 2007, NICCW filed a Reply. On March 28, 2007, AgriProcessors filed a Supplemental Resistance.

On June 5, 2007...