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Humane Society of the United States v. HVFG

August 19, 2010


The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1


Presently before this Court are cross-motions for attorneys' fees and costs, pursuant to the fee shifting statute in the Clean Water Act. Plaintiff, The Humane Society of the United States ("Plaintiff" or "HSUS"), claims that it prevailed when the Court sustained certain reporting and recordkeeping violations of Clean Water Act permits held by the defendant. Defendant, HVFG, LLC ("Defendant" or "HVFG"), also asserts that it prevailed and is owed fees and costs, because some of the violations alleged by the plaintiff were deemed moot. For the reasons that follow, Plaintiff's motion is GRANTED and Defendant's motion is DENIED.


HSUS brought this suit against HVFG, a foie gras manufacturer, for violations of the Clean Water Act (the "Act" or "CWA"). See 33 U.S.C. § 1365 (2010).*fn2 In its initial complaint, filed on September 6, 2006 after service of a statutory 60-day notice, Plaintiff alleged violations of Defendant's "Slaughterhouse SPDES Permit," claiming that "defendant has and will continue to violate section 301(a) of the CWA by discharging chlorine, phosphorous, and other pollutants into the Middle Mongaup River in violation of the effluent limits and other requirements in defendant's [SPDES] permit." Compl. ¶ 2 (Sept. 6, 2006) (Docket No. 1). Specifically, HSUS alleged that HVFG discharged a variety of pollutants in excess of the amount provided in the permit, including excess discharge of chlorine 648 times, fecal coliform 6 times, and the phosphorous levels in the discharge was exceeded by 300 percent. HSUS also claimed that HVFG failed to properly report these discharges, and that it had not properly posted a sign as to the location of its discharge pipe. See id. ¶¶ 34, 40, 41. Plaintiff sought a declaratory judgment, injunctive relief, and imposition of civil penalties in the amount of $27,500 per day per violation, in addition to fees and costs for the litigation. Id. ¶¶A-D.

After filing a second 60-day notice, HSUS filed an Amended Complaint on March 6, 2007, that incorporated alleged violations of a second permit, the "CAFO SPDES Permit." See Am. Compl. (Mar. 6, 2007) (Docket No. 18). This time, Plaintiff alleged that "defendant has and will continue to violate section 301(a) of the CWA by discharging chlorine, phosphorus, manure, and other pollutants into the Middle Mongaup River in violation of effluent limits and by failing to comply with monitoring, reporting, and operating requirements established by the two state-issued Clean Water Act permits applicable at defendant's facility." Id. ¶ 2. Specifically, the Amended Complaint clarified that the violations of the Slaughterhouse SPDES Permit included reporting and record keeping violations related to the aforementioned wrongful discharges. See id. ¶¶ 30-42. With regard to the CAFO SPDES Permit, it alleged a number of violations: "(1) discharging pollutants, including '[c]ontaminated runoff from the back of the barn . . . flowing to the adjacent pond,' (2) constructing and operating a manure lagoon without an engineered design, an operation and maintenance plan, or an emergency action plan, (3) failing to maintain records, properly report all discharges, or record levels of manure in waste storage containers to prevent overflow, (4) operating a new manure lagoon without modifying defendant's manure management plan, or CNMP, to reflect the expansion, (5) commencing operations at a new satellite farm on Fittkau Road without modifying defendant's CNMP to reflect the expansion, and (6) failing to comply with operational requirements of the CAFO General Permit, including failing to install a fence around waste containment structures." Id. ¶ 48. The Amended Complaint noted that HVFG had filed a consent order with the New York Department of Environmental Conservation ("DEC" or "NY DEC"), but alleged that this had not remedied all of the noticed violations. Id. ¶¶ 49-52. HSUS made the same requests for declaratory, injunctive, and civil penalties, but now sought $32,500 per day per violation. Id. ¶ C.

On December 22, 2009, the parties cross-moved for summary judgment. On summary judgment, "Plaintiff claim[ed] that Defendant violated its Slaughterhouse SPDES Permit through

(1) discharges in excess of the permitted levels for temperature, chlorine, settleable solids, phosphorous, ammonia, and fecal coliform; (2) improper calibration and use of temperature, chlorine, and settleable solid testing equipment; (3) failure to take discharge reporting samples at proper locations; (4) failure to properly record the time, location, and chain of custody for discharge reporting samples; (5) failure to correctly report temperature on certain dates; and (6) failure to show a basis for certain chlorine sample reports. Plaintiff claim[ed] the Defendant violated its CAFO SPDES Permit through (1) impermissible discharges of pollutants in 2005 and 2006; (2) failure to properly complete and maintain a Comprehensive Nutrient Management Plan; and (3) improper storage of waste in a lagoon and storage tanks not constructed or certified by an engineering professional." Humane Soc. of U.S. v. HVFG, LLC, No. 06 Civ. 6829(HB), 2010 WL 1837785, at *3. (S.D.N.Y. May 18, 2010).*fn3 Plaintiff argued that Defendant could be subject to between $550,000 to over $600 million in civil penalties, depending on how they were calculated by the Court. On May 6, 2010, this Court filed an Opinion and Order that granted in part and denied in part both Plaintiff and Defendant's motions.*fn4 The determination was summarized as follows:

"[T]he undisputed material facts indicate that HVFG violated both its Slaughterhouse SPDES and CAFO SPDES Permits. With regard to the Slaughterhouse SPDES Permit, HVFG (1) discharged pollutants-wastewater above the allowed temperature, chlorine, ammonia, settleable solids, phosphorous, and fecal coliform-in excess of the permit's parameter limits; and (2) failed to comply with a variety of reporting and monitoring requirements, described supra. HVFG also violated its CAFO SPDES Permit because (1) it discharged pollutants despite its "no discharge" requirement; (2) failed to properly maintain and amend its Comprehensive Nutrient Management Plan, and; (3) failed to properly design and certify its waste storage structures. Although there is sufficient evidence to sustain each of these permit violations, the DEC Order entered into by HVFG expressly encompassed all of the CAFO SPDES Permit violations, as well as the excess discharge violations of the Slaughterhouse SPDES Permit. Since these violations were fully resolved and there is no evidence or likelihood of recurrence, Plaintiff's claims based on these violations are rendered moot. However, HVFG remains liable for the reporting and monitoring violations of the Slaughterhouse SPDES Permit because it was not covered by the DEC Order, and because there is evidence that the violations continued to occur after the Order was signed."

HVFG, 2010 WL 1837785, at *13. In other words, I found that there were violations of both SPDES permits, but that all violations of the CAFO SPDES Permit, as well as all discharge violations of the Slaughterhouse SPDES Permit, were rendered moot by the DEC consent order. The only sustained violations were the reporting, monitoring, and recordkeeping violations of the Slaughterhouse SPDES Permit. In terms of relief, I determined that no civil penalties were warranted since HVFG had already paid substantial fines to the DEC as part of the consent order, but that equitable relief in the form of a mandatory audit by a CWA Expert and a $50,000 donation to an environmental benefits project were appropriate. See HVFG, 2010 WL 1837785, at *14-15. The parties were instructed to file briefs for consideration of attorneys' fees and costs. Id. at *16.

Both parties claim they are entitled to attorneys' fees and costs as "prevailing parties." After initial briefs were filed, this Court requested additional documentation to clarify the fees associated with the sustained claims versus those that were deemed moot. HSUS claims that it prevailed in toto, and that it expended $1,157,248.84 in fees. Plaintiff initially reduced the amount of fees requested to $708,974.46 after making deductions for certain unnecessary work along with a voluntary across-the-board reduction of 15%. After the Court's request for additional itemization of fees, Plaintiff reduced its request further to $648,363.61 in fees. Plaintiff also initially requested $137,735.67 in costs and expenses, and subsequently reduced the request to $131,141.15. HVFG requests between $299,997.00 to $449,995.50 in fees, depending on whether the Court finds the attorney's reduced or regular rate to be appropriate. Defendant also seeks $43,809.00 in costs and expenses.


Under the Clean Water Act, a "court, in issuing any 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 general analyses developed by the federal courts to determine who is a prevailing party and to assess fees and costs are applicable to Clean Water Act litigation. See, e.g., J.C. v. Reg'l Sch. Dist. 10, Bd. of Educ., 278 F.3d 119, 123 (2d Cir. 2002)(standards "used to interpret the term 'prevailing party' under any given fee-shifting statue are generally applicable in all cases in which Congress has authorized an award of fees to a prevailing party.") (internal quotations omitted); Natural Res. Def. Council, Inc. v. Fox, 129 F. Supp. 2d 666, 669-674 (S.D.N.Y. 2001) (applying traditional fee-shifting analysis to CWA claim); Coal. for Liveable West Side, Inc. v. New York City Dept. of Envtl. Protection, No. 92 Civ. 9011(DAB), 1998 WL 299938, at *1 (S.D.N.Y. June 9, 1998) (same). This involves a two step analysis. First, the court must determine whether the party is a "prevailing party," and second, it must decide if the fees that are requested are reasonable. See Liveable West Side, 1998 WL 299938 at *1 (citing Pino v. Locascio, 101 F.3d 235, 237 (2d Cir.1997)).

A. Prevailing Party

"'[I]n order to be considered a 'prevailing party' . a plaintiff must not only achieve some material alteration of the legal relationship of the parties, but that change must also be judicially sanctioned . That is, plaintiffs are only eligible for attorneys' fees if they 'achieve some material alteration of the legal relationship' between them and their adversaries, and that change bears a 'judicial imprimatur.'" Perez v. Westchester Cnty. Dept. of Corr., 587 F.3d 143, 149 (2d Cir. 2009) (quoting Roberson v. Giuliani, 346 F.3d 75, 79-80 (2d Cir. 2009)); see also Fox, 129 F. Supp. 2d at 669. In the present case, it is clear that HSUS was a prevailing party, as it was granted summary judgment on the ground that HVFG violated the CWA by failing to fulfill its reporting and testing requirements. That is not to say I find Plaintiff's victory to have struck at the very heart of some nefarious environmental scofflaw - rather this comes closer to a case where a defendant ...

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