United States v. Hooker Chemicals & Plastics Corp., CIV-79-989C.

• Decision Date: 06 July 1984
• Docket Number: No. CIV-79-989C.,CIV-79-989C.
• Citation: 591 F. Supp. 966
• Court: U.S. District Court — Western District of New York
• Parties: UNITED STATES of America, et al., Plaintiffs, v. HOOKER CHEMICALS & PLASTICS CORPORATION, et al., Defendants, College Heights Property Owners Association, Niagara County Citizens Alliance, and Norman A. Martelli, Intervenors.

591 F. Supp. 966

UNITED STATES of America, et al., Plaintiffs, v. HOOKER CHEMICALS & PLASTICS CORPORATION, et al., Defendants College Heights Property Owners Association, Niagara County Citizens Alliance, and Norman A. Martelli, Intervenors.

No. CIV-79-989C.

United States District Court, W.D. New York.

July 6, 1984.

U.S. Dept. of Justice, Environmental Enforcement Section, Land and Natural Resources Div., Washington, D.C. (Michael Elder, Washington, D.C., of counsel), for plaintiff U.S. of America.

Robert Abrams, Atty. Gen., State of N.Y., New York City (Ann Goldweber, Asst. N.Y. State Atty. Gen., New York City, of counsel), for plaintiff State of N.Y.

Wald, Harkrader & Ross, Washington, D.C. (Thomas H. Truitt, Washington, D.C., of counsel), for defendants Hooker Chemicals & Plastics Corp.

Seeger, Steele & Galeziowski, Buffalo, N.Y. (David J. Seeger, Buffalo, N.Y., of counsel), for intervenors.

CURTIN, Chief Judge.

This case is one of four environmental lawsuits commenced in December of 1979 by the Environmental Protection Agency EPA against Hooker Chemicals and Plastics Corporation Hooker and related corporate entities. The EPA sought injunctive relief under sections 309 and 504 of the Clean Water Act, 33 U.S.C. §§ 1319, 1364, and other environmental statutes. Hooker and the governmental plaintiffs reached a settlement in January of 1981.

On April 30, 1982, I issued a decision and order approving the Settlement Agreement. This decision was based upon evidence adduced at a hearing which extended over a period of eight days. Counsel for plaintiff-intervenors College Heights Property Owners Association College Heights and Niagara County Citizens Alliance NCCA participated in the hearing, taking the position that the settlement should not be approved. Despite this opposition, the settlement was approved without any modifications. In the same order in which I approved the settlement, I granted the motions of College Heights and NCCA to intervene in this case pursuant to section 505 of the Clean Water Act, 33 U.S.C. § 1365. See United States v. Hooker Chemicals and Plastics Corp., 540 F.Supp. 1067 (W.D.N.Y.1982), familiarity with which is presumed. Plaintiff-intervenors now seek an award of litigation costs and attorney fees pursuant to section 505(d) of the Clean Water Act, 33 U.S.C. § 1365(d).¹ This application must be denied.

The intervenors claim that their work in this case has resulted in various successes which, they argue, are significant enough to justify an award of costs and fees. Among these "successes" are my decision recognizing their right to intervene and various "de facto modifications" of the settlement agreement which the intervenors contend were the result of their participation in the evidentiary hearing. It is now clear that litigants who achieve no success or only trivial success on the merits cannot be awarded attorney fees in cases brought under the Clean Water Act. Nor may fees be awarded for purely procedural victories. Ruckelshaus v. Sierra Club, 462 U.S. 680, ___ n. 9, 103 S.Ct. 3274, 3279 n. 9, 77 L.Ed.2d 938 (1983).² A review of what the intervenors describe as their successes, i.e., the "modifications" they brought about in the settlement, reveals that no successes were in fact achieved. For this reason, the court is without authority to order an award of attorney fees under the Clean Water Act's fee-shifting provision.

The intervenors argue that they are entitled to attorney fees because of the work done in connection with several different aspects of the Hyde Park lawsuit. The first is the success they achieved on their motion to intervene. However, the court notes the admonition by the Supreme Court that "purely procedural victories" should not justify fee awards pursuant to statutes such as that under consideration here. Ruckelshaus v. Sierra Club, 462 U.S. at ___ n. 9, 103 S.Ct. at 3279 n. 9. When an applicant moves to intervene in an action, the court is not asked to address the merits of the claim which the applicant seeks to assert. The court is asked only whether the motion is timely and if the applicant satisfies the other criteria of Rule 24 of the Federal Rules of Civil Procedure. In this lawsuit, the intervenors achieved no success on the merits which could be viewed as even the indirect result of their success on the intervention motion. Under these circumstances, it is particularly appropriate to characterize the granting of that motion as a "purely procedural" victory. The intervenors' victory on their motion to intervene in this case was purely procedural. The work done in connection therewith cannot be the basis of an award of counsel fees under section 505(d) of the Clean Water Act. Id.

The intervenors also argue that their presence in this lawsuit resulted in four "de facto" modifications in the Settlement Agreement approved by the court in April, 1982. The first "modification" perceived by the intervenors consists of their belief that they obtained a commitment from Hooker to discontinue the use of existing clay-lined storage lagoons within one year, build steel storage tanks, and subsequently dismantle and destroy the old lagoons.

The intervenors plainly achieved no success on this matter. The motion for attorney fees was argued nearly two years after I approved the Settlement Agreement. In these two years, Hooker has not discontinued the use of the storage lagoons which the intervenors claim were earmarked for destruction within one year. Hooker is not now being cited for breaching the agreement. More important is the fact that the "commitment" to which the intervenors allude was, in fact, a contemporaneous estimation by Hooker's expert witness as to how long it would take to implement the portion of the Settlement Agreement dealing with the storage of contaminated water. In my decision approving the agreement, I noted that the lagoons were the cause of considerable controversy but that Hooker had addressed the problem satisfactorily. The statement by Hooker's expert that it would take a year to discontinue the use of the clay lagoons was cited in that context. United States v. Hooker Chemicals and Plastics Corp., 540 F.Supp. at 1075-1076 and n. 4. The prediction that destruction of the lagoons would take a year was not a commitment extracted from Hooker by the intervenors. It was an opinion on what the pace of this part of the remedial work would be under the terms of the Settlement Agreement. The work of the intervenors resulted in no change to the agreement or to Hooker's obligations thereunder. Plaintiff-intervenors are not entitled to counsel fees for the position they took on the storage lagoons.

A second "de facto modification" said to have been brought about by the intervenors is a commitment not to preclude excavation as a means of dealing with actual and potential environmental dangers at the landfill. This contention by the intervenors is plainly wrong. The Settlement Agreement contemplates that the best and most appropriate remedies for all present and future dangers cannot be identified with certainty at the present time. Id., at 1077. This perception gave rise to the inclusion within the agreement of the flexible concept of Requisite Remedial Technology RRT. Id.

On the basis of the record then before it, the court in April of 1982 was unwilling to make a finding that Hooker was required to excavate the materials at the landfill. However, the court expressly stated that if the RRT measures proposed by Hooker were unacceptable, "Hooker may be forced to excavate the materials as part of a remedial program." Id., at 1079. The spacious and flexible concept of RRT obviously recognizes the possibility of excavation. Requisite Remedial Technology is crucial to the agreement, and its place in the agreement was assured by Hooker and the governmental plaintiffs, not the intervenors. The intervenors did nothing either to include excavation within the scope of RRT or to make the resort to excavation more likely. The intervenors achieved no success on this point. They cannot collect fees in the absence of any success.

The intervenors claim that they identified a previously unidentified swale area and obtained a commitment to remediate this area. I have carefully examined the record on this matter, and I conclude that the "commitment" obtained by the intervenors on this point was, in fact, the voluntary cooperation of the EPA to perform some testing in areas which may well have come to the parties' attention during the normal course of implementing the Settlement Agreement. The important point here is that it was the EPA that responded to the intervenors' concern. If the matter was covered by the agreement, then, of course, the efforts of the intervenors were not necessary. If it was not, then the efforts of the intervenors still would not justify an award of fees against Hooker, because the intervenors did not obtain any order requiring Hooker to do anything. The intervenors' "success" in gaining the voluntary cooperation of the EPA cannot be the basis of applying the fee-shifting statute against Hooker.

The fourth de facto modification cited by the intervenors is the obtaining of "commitments" from the EPA and New York State to sink the overburden tile drain system to the bedrock in order to ensure a 100 percent performance standard. However, the court is not persuaded that the efforts of the intervenors resulted in...