US EPA v. Environmental Waste Control, Inc.

• Decision Date: 26 April 1990
• Docket Number: No. S87-55.,S87-55.
• Citation: 737 F. Supp. 1485
• Parties: UNITED STATES of America (EPA), Plaintiff, and Supporters to Oppose Pollution, Inc., Intervenor-Plaintiff, v. ENVIRONMENTAL WASTE CONTROL, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

737 F. Supp. 1485

UNITED STATES of America (EPA), Plaintiff, and Supporters to Oppose Pollution, Inc., Intervenor-Plaintiff, v. ENVIRONMENTAL WASTE CONTROL, INC., et al., Defendants.

No. S87-55.

United States District Court, N.D. Indiana, South Bend Division.

April 26, 1990.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert Oakley, F. Henry Habicht, Frank Bentkover, Sam Boxerman, U.S. Dept. of Justice, Environmental Enforcement Section, Washington, D.C., Victor A. Franklin, U.S. EPA Region V, Chicago, Ill., Andrew B. Baker, Jr., Asst. U.S. Atty., Hammond, Ind., and Clifford Johnson, Asst. U.S. Atty., South Bend, Ind., for U.S. (EPA).

John C. Hamilton, South Bend, Ind., and Charles Tebutt, Syracuse, N.Y., for STOP.

George W. Pendygraft, George Plews, Indianapolis, Ind., and James H. Pankow, South Bend, Ind., for all defendants.

MEMORANDUM AND ORDER

MILLER, District Judge.

On March 29, 1989, following a trial encompassing several months, this court imposed significant civil penalties against the defendants for violations of the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq. ("RCRA"), and entered a permanent injunction against the defendants' operation of the hazardous waste disposal facility known as the Four County Landfill. United States (EPA) v. Environmental Waste Control, Inc., 710 F.Supp. 1172 (N.D.Ind.1989). For purposes of this memorandum, the reader's familiarity with that order is presumed.

In that opinion, the court also determined that an intervening citizen's group calling itself Supporters to Oppose Pollution, Inc. ("STOP") was a prevailing party and, as such, was entitled to recover its costs of litigation relating to the claims on which it succeeded, including reasonable attorney and expert witness fees, pursuant to 42 U.S.C. § 6972(e). Pursuant to the court's finding on this issue, STOP has moved for an award of fees and costs. EWC objects generally to STOP's ability to be reimbursed for attorney fees and other costs and also objects to the requested compensation for certain fees and STOP's proposed lodestar multiplier. STOP's motion has been ripe for review for some time; the court is now ready to rule. This opinion is intended to satisfy the court's obligation to state its reasons for its conclusions when awarding attorney fees. Kossman v. Calumet County, 849 F.2d 1027, 1030-1031 (7th Cir.1988).

I. STOP'S SUBMISSIONS

In support of its application, STOP submits affidavits, with attached documentation, from several people, including its president, Dixie Sefcheck. Mrs. Sefcheck explains that STOP was incorporated in December, 1986 and has never had more than 500 members nor more than $4,000.00 in assets. She explains that STOP was incorporated through the assistance of attorney Nelson Chipman, who communicated with STOP members and the EPA's attorneys through the date of STOP's intervention in this suit. As the litigation increased in complexity, however, Mr. Chipman could not continue to work for STOP for free, and so he began a search for other counsel. Eventually, he contacted John Hamilton, who agreed to represent STOP at a reduced hourly rate of $80.00, with the understanding that he would apply to the court for a fee award at a substantially higher hourly rate if the case were successful.

Mr. Chipman's affidavit outlines the legal work that he provided STOP before John Hamilton was retained. Mr. Chipman first began working for STOP in September, 1986. Mr. Chipman states that his hourly rate was $70.00 and he documented 57.5 hours of legal assistance provided to STOP. Mr. Chipman reports that he has had a general legal practice since admission to the Indiana bar in 1981.

Even with the reduced hourly rate, STOP could not pay Mr. Hamilton in full. By May 26, 1989, STOP's members had managed to pay Mr. Hamilton $18,437.30. They also had provided Mr. Hamilton with $500.00 toward payment of Dr. Henk Haitjema, who provided STOP with expert assistance, and paid $3,500.00 to Professor Robert Blomquist of the Valparaiso Law School and law student Susan Hartman for consulting work they performed. STOP also paid round trip air fare amounting to $398.00 for a witness to travel to the trial from the State of Washington and round trip air fare in the sum of $644.00 for attorney Charles Tebbutt to travel to Indiana from Syracuse, New York. Finally, STOP expended $978.34 in copying expenses before and during this litigation.

Mr. Tebbutt, an attorney associated with the Atlantic States Legal Foundation ("ASLF"), submitted two affidavits in conjunction with STOP's petition for fees. Mr. Tebbutt's supplemental affidavit reveals that he was first admitted to the bar in 1988 and that his billing rate per hour for environmental legal work is $85.00. Mrs. Sefcheck's affidavits detail the assistance rendered to STOP by the Atlantic States Legal Foundation and its attorneys from before incorporation. Mr. Tebbutt's initial affidavit identifies ASLF as a not-for-profit corporation that has provided STOP with legal and expert consulting services since mid-December, 1986.¹ Mr. Tebbutt represented STOP at trial as co-counsel with Mr. Hamilton and will serve as co-counsel on appeal. Mr. Hamilton's affidavit relates that Mr. Tebbutt interviewed and prepared several witnesses for trial (including Aaron Foster, Walter Block, Jean King, and Don Bowen), provided considerable technical expertise in trial, and provided valuable assistance in preparing for the cross-examination of defendant James Wilkins and in preparing STOP's proposed findings and conclusions. Mr. Tebbutt submitted an accounting of Atlantic States' bill totalling $47,389.49 in his initial affidavit and a detailed description of the work associated with such costs in his supplemental affidavit.

Mr. Hamilton submitted one extensive, principal affidavit in support of the fee request and two supplemental affidavits submitting factual information in response to EWC's objections to the fee petition. Mr. Hamilton explains that he was admitted to the bars of California (1968) and Indiana (1977). His litigation experience covers a broad range of topics, including criminal law, employment discrimination, commercial law, personal injury, real estate disputes, consumer fraud, constitutional law, environmental law, and construction litigation.

Mr. Hamilton first met with STOP members in mid-December, 1987 and undertook to represent STOP at a charged hourly rate of $80.00, with the understanding that should STOP prevail, he would seek a fee award reflecting an hourly rate more in accordance with what he believed to be the prevailing rate for such litigation. When he began representing STOP, Mr. Hamilton was in sole practice, augmented by a part-time county prosecutor position. The preceding June he had departed an eight-member firm he had helped found in 1978. To limit his time on STOP's case, Mr. Hamilton avoided most of the depositions being taken in the case until the defendants counterclaimed against STOP and began discovery on the counterclaim. Mr. Hamilton attended those depositions until the court dismissed the counterclaim on August 2, 1988.

In the months of May, June, and November, 1988, this suit occupied nearly all of Mr. Hamilton's time. The trial then began, continuing over thirty days in December, January, and February. In January, 1989, Mr. Hamilton joined a new firm, bringing to the firm indebtedness arising from his devotion of time to the Landfill litigation.

To Mr. Hamilton's knowledge, the only attorney within ninety miles of South Bend who performs environmental plaintiff's work is Professor Blomquist, who has done such work in northwestern Indiana. Mr. Hamilton states that he, himself, would not have undertaken representation of STOP but for the prospect of a fee award under RCRA. STOP's likelihood of success at the litigation's outset was far from certain, as it sought to hold the defendants to penalties not sought by the EPA. The likelihood of successful collection of a fee award may have been even less, Mr. Hamilton suggests, because of defendant Stephen Shambaugh's history of landfill operation.

STOP also submits the affidavit of Samuel Sage, ASLF's president and senior scientist. Mr. Sage explains the extent of the work he and his organization completed in anticipation of legal action concerning contamination at the Four County Landfill. He reports travel and office expenses incurred by himself and his organization in their investigative efforts. Mr. Sage's affidavit does not give amounts or descriptions of these claimed expenses.

Finally, STOP submits the affidavits of two other attorneys. Thomas Singer, a very experienced litigator in the South Bend, Indiana area, opines that $150.00 constitutes a reasonable hourly rate for an attorney with Mr. Hamilton's experience in complex business litigation in this area, without regard to the contingencies of delay in payment or the obligor's filing of bankruptcy. Bryan Tabler, who has practiced environmental law in the Indianapolis, Indiana area for seventeen years, states that, "Lawyers specializing in environmental matters with over fifteen years' experience commonly command fees of $150.00 per hour and more for work in that subject matter area within Indiana."

Mr. Hamilton reports investment of 737.95 hours in the case as of May, 1989. He seeks a lodestar determination based on an hourly rate of at least $150.00 and a multiplier of two or three in light of the risk of non-payment. STOP also seeks $47,389.49 for Atlantic States, $8,600.93 for miscellaneous expenses, $3,500.00 for Prof. Blomquist and Ms. Hartman, at $4,780.54 for Dr. Haitjema.

II. EWC's RESPONSE

The defendants (here collectively called "EWC", as in the March 29 opinion) oppose STOP's petition on several fronts. EWC argues that no fee award should be entered: the statute under which STOP intervened contains no fee-shifting provision, and the statute upon which STOP relies...