Sierra Club v. Hamilton County Bd., County Com'Rs

Decision Date18 October 2007
Docket NumberNo. 05-4437.,05-4437.
Citation504 F.3d 634
PartiesThe SIERRA CLUB and Marilyn Wall, Plaintiffs-Appellees, v. HAMILTON COUNTY BOARD OF COUNTY COMMISSIONERS and City of Cincinnati, Defendants-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Andrew S. Tulumello, Gibson, Dunn & Crutcher LLP, Washington, D.C., for Appellants. D. David Altman, D. David Altman Co., LPA, Cincinnati, Ohio, for Appellees. ON BRIEF: Andrew S. Tulumello, Michael K. Murphy, Peter P. Murphy, Amir C. Tayrani, Gibson, Dunn & Crutcher LLP, Washington, D.C., for Appellants. D. David Altman, Amy M. Hartford,

Amy J. Leonard, D. David Altman CO., LPA, Cincinnati, Ohio, Albert J. Slap, Law Office of Albert J. Slap, Aspen, Colorado, for Appellees.

Before: MARTIN and DAUGHTREY, Circuit Judges; REEVES, District Judge.*

DAUGHTREY, J., delivered the opinion of the court, in which MARTIN, J., joined. REEVES, D.J. (pp. 645-57), delivered a separate dissenting opinion.



The Hamilton County Board of County Commissioners and the City of Cincinnati (collectively, the County) appeal the district court's award of attorneys' fees to the Sierra Club and individual plaintiff Marilyn Wall (collectively, the Sierra The Honorable Danny C. Reeves, United States District Judge for the Eastern District of Kentucky, sitting by designation. Club) in this Clean Water Act case. The district court determined that the Sierra Club was entitled to recover litigation costs both on the basis of the "catalyst theory" and because the plaintiff was a "prevailing or substantially prevailing party" under section 1365 of the Act, 33 U.S.C. § 1365(d). The County argues that the catalyst theory of recovery was debunked by the Supreme Court in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), that the Sierra Club cannot be considered a prevailing party under existing case precedent, and that — even if the Sierra Club is entitled to attorneys' fees in this case — the amount awarded by the district court cannot be sustained on the record. We conclude that the district court did not err in determining that the Sierra Club was entitled to recover attorneys' fees as a "prevailing or substantially prevailing party" in this case, but we also find it necessary to remand the case for a particularized determination of the amount of that award.


Despite the legal nature of the dispute in this case, the run-up to its resolution turns out to be fairly fact-intensive and finds its genesis in the intricacies of Cincinnati's aging sewer system. Generally speaking, there are two principal types of sewer systems: a sanitary sewer system carrying only waste products and a combined sewer system, which carries both sanitary waste and storm water runoff. Cincinnati began efforts in the 1930's to separate its combined sewer system, which dated back to the 1860's, in order to avoid the commingling of sanitary waste and storm water. Although the separate sanitary sewer system was designed to handle only sanitary waste, many foundation drains and other drainage systems were constructed to flow into the sanitary sewer system, leading to an overtaxed sewer system and frequent basement flooding. In response to capacity-related overflows, which caused wastewater to back up onto streets and into homes, the County created sanitary sewer overflows (SSOs) along local tributaries as planned escape points when the sewer system was operating beyond capacity.

The result was the construction of approximately 100 overflows, designed to release excess waste into rivers and other waterways when the system was overtaxed. Eventually, the municipality-created SSOs were discharging hundreds of millions of gallons of sewage, at a rate of approximately 75 million gallons a year. Combined sewer systems also incorporated planned overflows, and because these combined sewer systems carried both sanitary waste and storm water, they were more prone to rain-induced overflows and resulted in some six billion gallons in overflows annually.

In 1972, Congress enacted the Clean Water Act, 33 U.S.C. §§ 1251-1387, with the goal "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). In order to achieve this goal, the Act prohibits discharge of pollutants, including raw sewage overflows, into waters, see 33 U.S.C. § 1311(a), unless authorized by a National Pollutant Discharge Elimination System permit. See 33 U.S.C. § 1342. Sanitary system overflows are a violation of the Act and have been since 1972.

There are multiple parties responsible for enforcement of the Act, including the states, the federal government, and private citizens. Although the primary responsibility for enforcement rests with the state and federal governments, private citizens provide a second level of enforcement and can serve as a check to ensure the state and federal governments are diligent in prosecuting Clean Water Act violations. See 33 U.S.C. § 1365(a). Because citizen suits were "meant to supplement rather than to supplant governmental action," Gwaltney of Smithfield v. Chesapeake Bay Found., 484 U.S. 49, 60, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), citizen suits must fulfill several procedural prerequisites.

The Act provides that a citizen may not commence an action under § 1365 "prior to sixty days after the plaintiff has given notice of the alleged violation." 33 U.S.C. § 1365(b)(1)(A). Under the relevant regulation, the notice must "include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice." 40 C.F.R. § 135.3(a). The 60-day notice provides federal and state governments with the time to initiate their own enforcement actions. If either the state or federal government is diligently prosecuting the Clean Water Act violation, a citizen suit for that same violation may not proceed. Nevertheless, a citizen may still play a role in a governmental enforcement action under § 1365(b)(1)(B), which provides that "in any such action in a court of the United States any citizen may intervene as a matter of right."

In response to at least two decades of sewage discharge into area rivers and tributaries, as well as concerns over what the Sierra Club described as ten years of non-enforcement, the Sierra Club provided a citizen suit notice to the required parties in a letter dated December 18, 2001. The notice states:

On a monthly basis for at least the past 5 years to the present, the sanitary sewer conveyance systems owned and operated by the Metropolitan Sewer District, the City of Cincinnati and/or Hamilton county have and continue to overflow into the Mill Creek and the Little Miami River (both navigable waters of the United States) from specific openings in the sewer systems. These openings are known as Sanitary Sewer Overflows or SSOs. Such raw sewage overflows are a direct violation of [the] federal Clean Water Act, a threat to public health and safety and cause injury in fact to the recreational and aesthetic interests of the Sierra Club Miami Group, its members, and Marilyn Wall, individually.

The MSD is required to keep records of the date, location and duration of each unpermitted sanitary sewer overflow. MSD is also required to provide that information to the Ohio Environment Protection Agency (OEPA). The specific information of each and every SSO on the Mill Creek and Little Miami River is in the possession of the MSD, so it is on actual notice of each activity that constitutes violation of the Clean Water Act, the location of the violations, and the dates and the duration of the violations. Each monthly report from MSD to OEPA on sanitary sewer overflows dating back five-years from the date of this notice letter is specifically incorporated by reference, herein. This notice letter, however, is not limited by the MSD's written reports to OEPA. It is also meant to include any additional SSOs to the Little Miami River and/or the Mill Creek of which MSD has actual notice, but were not reported to OEPA, as required. It is the intent of the Club and Marilyn Wall to enforce and seek elimination of all SSOs into the Mill Creek and the Little Miami River, regardless of whether said SSO was properly recorded and notice of it sent to the Ohio EPA/

The record indicates that the Sierra Club's action in this regard was spurred by the fact that the County and the Ohio Environmental Protection Agency had been engaged in negotiations concerning implementation of an order issued by the OEPA in 1992, compelling the County to remedy its illegal SSOs. In the intervening ten years, Hamilton County and the City of Cincinnati had spent more than $174 million to eliminate a total of 63 SSOs. Nevertheless, additional SSOs remained, and violations continued despite the order and the County's and City's efforts.

During the 60 days following the filing of its citizen suit notice on December 18, 2001, the Sierra Club communicated with government officials at the federal, state, and local levels. On February 11, 2002, the County provided the Sierra Club and the general public with a proposed "interim partial consent decree on sanitary sewer overflows." Following the release of the proposed consent decree, the public had only two days to review the document before the Hamilton County Commissioners voted to approve the decree. According to an excerpt of a transcript of the February 13 meeting, the participants discussed whether approving the proposed...

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