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ATLANTIC STATES LEGAL FOUND. v. ONONDAGA DEPT. OF

September 5, 1995

ATLANTIC STATES LEGAL FOUNDATION, INC.; STATE OF NEW YORK and THOMAS C. JORLING, Commissioner of the New York State Department of Environmental Conservation, Plaintiff, against THE ONONDAGA DEPARTMENT OF DRAINAGE AND SANITATION and ONONDAGA COUNTY, NEW YORK, Defendants.


The opinion of the court was delivered by: THOMAS J. MCAVOY

 I. BACKGROUND

 The plaintiff, Atlantic States Legal Foundation (hereinafter "ASLF") commenced this lawsuit against the defendants Onondaga County Department of Drainage and Sanitation Onondaga County (hereinafter "County") on January 19, 1988, pursuant to § 505 of the Clean Water Act for illegal discharges of inadequately treated and raw sewage from the Metropolitan Syracuse Wastewater Treatment Plant (Metro Plant), associated pumping stations, and combined sewer overflows (CSO). New York State, through the Department of Environmental Conservation (DEC) intervened in this case and the parties negotiated a Judgment on Consent (Consent Judgment) which was signed by this Court on January 31, 1989.

 In this motion, ASLF seeks an award of attorneys' fees and expert witness fees pursuant to § 505(d) of the Clean Water Act, 33 U.S.C. § 1356(d). ASLF claims that it is the prevailing party of a motion dated December 21, 1994 and that, as such, is entitled to an award totaling thirty-seven thousand four hundred ninety-eight and 34/100 ($ 37,498.34) dollars. ASLF also claims that it is entitled to an award of sixteen thousand five hundred ninety-three and 55/100 ($ 16,593.55) dollars in litigation fees for the work expended preparing to oppose a motion made by the defendants on January 20, 1994. That motion was withdrawn by the defendants on February 25, 1994. The defendants, in turn, have moved pursuant to § 505(d) of the Clean Water Act, 33 U.S.C. § 1356(d) claiming that they were the prevailing party in the December, 1994 motion and are entitled to an award of attorneys' fees and expert witness fees in the sum total of fifty thousand six hundred seventy-two and 26/100 ($ 50,672.26) dollars.

 In the December, 1994 motion, ASLF sought the imposition of stipulated penalties for the County's violation of the interim effluent limits established in the Consent Judgment, and for the County's failure to complete a Municipal Compliance Plan (MCP). ASLF also sought an injunction barring the construction of projects related to the Consent Judgment until the MPC was completed and approved by the DEC.

 The Court granted ASLF's motion for penalties for the County's violations of the effluent limits. The penalties, however, were limited in that they did not include penalties for five alleged excesses about which there was a legitimate dispute. The Court also declined to assess any penalties for excesses due to construction undertaken pursuant to the Consent Judgment.

 The Court also denied ASLF's motion for penalties regarding an alleged late submission of the MCP. However, the Court did find (1) that the County had not submitted a completed version of the required MCP contrary to the express provisions of the Consent Judgment; (2) that, contrary to the County's claim, the State did have the power to declare that the model evaluations were complete and thereby start the 90-day period within which the MCP was to be submitted; (3) and that the County had no sound basis for claiming inadequate quality of the models. The Court reasoned that penalties should not be imposed, not because there was no basis for such penalties, but because the overriding goal of the Consent Judgment was the execution of the MCP in a timely fashion, and it was believed that penalties would slow down that process. The process was moving forward, but at a slow pace. Consequently, the Court ordered the County to comply with the terms of the Consent Judgment.

 II. DISCUSSION

 A. Attorneys' Fees Under The Clean Water Act

 Plaintiff ASLF seeks an award of legal fees and certain costs relating to its opposition to a motion withdrawn by defendants, the County, and relating to its motion to enforce the Consent Judgment pursuant to the fee shifting provision of the Clean Water Act, 33 U.S.C. § 1365(d) (§ 505(d) of the Clean Water Act). The Act states, in relevant part, that:

 
the court, in issuing an final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate.

 33 U.S.C. § 1365(d). The Court, therefore must first determine which party prevailed and then determine whether an ...


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