Opposition — Save The Valley, Inc. v. Environmental Protection Agency

OCTOBER TERM, 1982

SAVE THE VALLEY, INc., PETITIONER

V.

ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT N OPPOSITION

Rex E. Lee

Solicitor General

CAROL E. DINKINS

Assistant Attorney General

ANNE S. ALMY

MICHAEL W. STEINBERG

Attorneys

Department of Justice

Washington, D.C. 205380

(202) 633-2217

ROBERT M. PERRY

Office of General Counsel

Environmental Protection Agency

Waskington, D.C. 20460

In the Supreme Court of the United States—

QUESTION PRESENTED

The court of appeals rejected petitioner’s chal-

lenges to the Clean Water Act and Clean Air Act

permits issued by respondent Environmental Protec-

tion Agency for a new electric power plant in Ken-

tucky. In a collateral administrative proceeding,

however, petitioner obtained certain modifications to

the Clean Water Act permit. Petitioner then applied

to the court of appeals for an award of attorney’s

fees and costs under Section 307 (f) of the Clean Air

Act. The court of appeals denied this application

without opinion.

The question presented is: whether the denial of

the application for attorney’s fees and costs was in

these circumstances an abuse of discretion.

(1)

TABLE OF CONTENTS

Page

11K % 1

EEE 1

Zr 2

152%„%“‘“t„ . — 5

— P nl MRRP nen tee oe 15

TABLE OF AUTHORITIES

Cases:

Alyeska Pipeline Co. v. Wilderness Society, 421

11 10

Consolidated Freightways Corp. v. Kassel, No. 79-

III SS 1S” aoc enen on 7,8

Copeland v. Marshall, 641 F.2d 80 7

Evans v. Sheraton Park Hotel, 503 F.2d 177 7

Gorsuch v. Sierra Club, cert. granted, No. 82-242

eee 5, 18, 15

Maher v. Gagne, 448 U.S. 122 11

Manchester Environmental Coalition v. EPA, cert.

denied, No. 82-247 (Nov. 29, 1982) —.................. 6

Murphy v. Kolovitz, 635 F.2d 662 7

National Association of Concerned Veterans v. See-

retary of Defense, 675 F.2d 1319¶ 14

Newman v. Piggie Park Enterprises, Inc., 390

r 6

Northern Plains Resources Council v. EPA, 670

/ . 12, 13

Northern Plains Resource Council v. EPA, 645

... aw 14

Sethy v. Alameda County Water District, 602 F.2d

111% — 7

Sierra Club v. Gorsuch, 672 F. 2d 33, cert. granted,

No. 82-242 (Oct. 18, 1982) 5, 6, 12, 13, 14

United States v. Mitchell, 445 U.S. 5 6

(m)

Iv

Statutes and rules: Page

Civil Rights Attorney’s Fees Award Act of 1976,

42 U.S.C. 1988 6, 11

Clean Air Act, 42 U.S.C. (Supp. IV) 7401 et seq.:

Section 307(b), 42 U.S.C. (Supp. IV) 7607

(b) 2 2

Section 307 (f), 42 U.S.C. (Supp. IV) 7607

—2— 4. 5, 6, 7, 9, 12, 18

Clean Water Act, 33 U.S.C. (& Supp. IV) 1251

et seq:

Section 511(c)(1), 38 U.S.C. 1871(c) (1)... 11

Section 509 (b) (1) (F), 33 U.S.C. 1369 (b) (1)

— 5

Energy Supply and Coordination Act of 1974, 15

. 11

Z 10

ä 7

. 333 —

Z —

8

®

8

OD LL Le

8

8

3 8

In the Supreme Court of the United States

OcTOBER TERM, 1982

No. 82-637

SAVE THE VALLEY, INC., PETITIONER

V.

ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORAR! TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The court of appeals’ orders (1) rejecting peti-

tioner’s challenge to the air quality permit (Pet. App.

4a); (2) rejecting petitioner’s challenge to the water

discharge permit (Pet. App. 2a); and (3) denying

petitioner’s application for an award of attorney’s

fees (Pet. App. la) are unreported.

JURISDICTION

The court of appeals’ order denying petitioner’s

motion for an award of attorney’s fees and costs

(Pet. App. Ia) was entered on July 14, 1982. The

petition for a writ of certiorari was filed on October

(1)

12, 1982. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATEMENT

1. On January 29, 1979, petitioner Save the Val-

ley, Inc. filed a petition for review challenging the

issuance of two permits by respondent Environmen-

tal Protection Agency, to the Trimble County (Ken-

tucky) Generating Station owned by Louisville Gas

& Electric Company (“LG&E”). The first permit

was issued under the Clean Water Act to control the

discharge of pollutants into the Ohio River during

construction and operation of the Trimble County

Generating Station. The second permit was issued

under the provisions of the Clean Air Act that pre-

vent significant deterioration of air quality in areas

that have achieved the national ambient air quality

standards. The petition for review was filed under

Section 509 (b) (1) (F) of the Clean Water Act, 33

U.S.C. 1369 (b) (1) (F), and Section 307 (b) of the

Clean Air Act, 42 U.S.C. (Supp. IV) 7607 (b).

In the court of appeals, petitioner sought to invali-

date both permits and to halt the construction of

LG&E’s facility. Petitioner contended primarily that

the Clean Water Act permit was invalid, arguing that

EPA should have held an adjudicatory hearing on the

under the National Environmental Policy

Act (“NEPA”) of the accompanying environmental

impact statement (“EIS”) before issuing the permit.

Petitioner also argued that the Clean Air Act permit

was invalid because EPA did not held a second public

comment period on that permit during the agency’s

reconsideration of the proposed permit in light of

enactment of the 1977 amendments to the Clean Air

Act (Pet. 3-4; Pet. App. 5a).

<

5

5

i

4

1

5

f

5

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Is

2

th

5

5

f

8

if

July 16, 1980, the court of appeals issued an

(Pet. App. 4a-6a) upholding the validity of the

Clean Water Act permit would be

abeyance. In the wake of that adjudicatory hearing,

in December of 1980, certain modifications were made

in the Clean Water Act discharge permit that had

been issued for LG&E’s Trimble County Generating

March 4, 1982, the court of appeals entered its

order in this case, upholding the validity of the

Act permit challenged by petitioner

).

4

8. Although EPA had prevailed on all issues de-

cided by the court of appeals, petitioner nonetheless

sought an award of costs including attorney’s fees in

the amount of $97,925.28 under Section 307(f) of

the Clean Air Act, 42 U.S.C. (Supp. IV) 7607(f)

(Pet. 7). The award sought embraced all time ex-

pended by petitioner’s counsel in connection with the

petition for review, on petitioner’s Clean Water Act

and National Environmental Policy Act claims, as well

as its Clean Air Act claim. Also included was time ex-

pended after the date of filing of the petition for review

on administrative proceedings related to the Clean

Water Act and NEPA issues. EPA opposed any award

of attorney’s fees on the grounds that: (1) the domi-

nant share of the time expended by petitioner’s attor-

neys on this case was devoted to issues under the Clean

Water Act, which does not authorize fee awards in

cases such as this; (2) this is not an “appropriate”

case for a fee award under Section 307(f) of the

Clean Air Act, because petitioner neither prevailed

on its single Clean Air Act claim nor showed that

this litigation significantly furthered the objectives

of the Clean Air Act; and (3) the documentation

supplied by petitioner’s counsel did not permit segre-

gation of the time spent on the Clean Air Act issue

from the time devoted to the other claim. EPA also

challenged the amount of the fee award requested by

petitioner’s counsel, on the ground that neither the

hours expended nor the hourly rate claimed was prop-

erly documented.

On July 14, 1982, the court of appeals denied peti-

tioner’s application for fees and costs “[u]pon the

record before us” without entering any opinion (Pet.

App. la).

ARGUMENT

The court of appeals did not abuse its discretion in

denying petitioner’s application for attorney’s fees

and costs in the circumstances of this case. The dis-

position of that application without an opinion merely

settled rights between the parties to this case, and

established no precedent, much less one of general

importance. Nor was the court of appeals’ failure to

issue an opinion itself such a departure from accepted

judicial practices as to require intervention by this

Court. Further review accordingly is not warranted.

1. Petitioner suggests (Pet. 8) that review should

be granted in this case to provide guidance to the

lower courts in determining when an award of attor-

ney’s fees is “appropriate” within the meaning of

Section 307(f) of the Clean Air Act, 42 U.S.C.

(Supp. IV) 7607(f). We agree with petitioner that

the question thus identified in abstract form is an im-

portant one with significant unsettled aspects. In-

deed, the Court has recently granted our petition,

Gorsuch v. Sierra Club, No. 82-242 (Oct. 18, 1982), to

address the question whether it can be “appropriate”

to award fees under Section 307(f) to a party that

hes not prevailed upon any eapest of ite petition for

review. In Sierra Club v. Gorsuch, 672 F.2d 33

1982), the decision this Court has agreed to re-

view, the United States Court of Appeals for the Dis-

trict of Columbia Circuit, after extended analysis,

concluded that it was appropriate to award fees in

the circumstances described where the party’s pre-

sentation substantially advances what the court took

to be the Clean Air Act purpose of encouraging judi-

cial resolution of “important, complex and novel” (id.

at 39) questions of statutory interpretation under

the Act.

Unlike Sierra Club this case is an inappropriate

vehicle for any needed clarification of the law, be-

cause the court of appeals did not issue any opinion,

much less announce any standard governing the avail-

ability of attorney’s fees. For this reason, not only

does the decision below fail to conflict with any deci-

sion of this Court or of any other court of appeals,

but it presents no question to he reviewed by this

Court. See, e.g., United States v. Mitchell, 445 U.S.

535, 546 n.7 (1980).*

2. Nor does the court of appeals’ failure to render

an opinion in this case itself warrant review. None

of the decisions cited by petitioner (Pet. 18) for the

proposition that denial of fees without an opinion is

an abuse of discretion involved the statute at issue

here, Section 307(f) of the Clean Air Act. Signifi-

cantly, all of the cited cases involved statutes, such

as the Civil Rights Attorney’s Fees Award Act of

1976, 42 U.S.C. 1988, that authorize fee awards to a

“prevailing party,” which have been interpreted to

require an award to such a party “unless special cir-

cumstances would render such an award unjust”

(Newman v. Piggie Park Enterprises, Inc., 390 U.S.

400, 402 (1968)). Some courts of appeals have

thought that [i] mplieit in [such statutory language]

Under Rule 11 of the Rules of the United States Court of

Appeals for the Sixth Circuit opinions designated “not for

publication” have no precedential effect. While the order in

this case is not formally so designated, given that no opinion

was issued, the court’s order plainly is not intended to have

the force of precedent.

As petitioner observes (Pet. 8 n.5), the petition in Man-

chester Environmental Coalition v. EPA, No. 82-247, raised

a question similar to that tendered for review here. This

Court denied the petition in No. 82-247 on November 29, 1982.

7

is a requirement that a court which denies an award

of attorney's fees [to a prevailing party] must issue

findings of fact and conclusions of law identifying

the ‘special circumstances’ and explaining why they

render an award unjust.” Sethy v. Alameda County

Water District, 602 F.2d 894, 897 (9th Cir. 1979).°

This reasoning simply does not apply here because

Section 307(f) of the Clean Air Act does not employ

a “prevailing party” standard for awards of attor-

neys’ fees.

Nor do any of the decisions cited by petitioner con-

cern fee awards upon petitions for review of agency

action that are within the original jurisdiction of the

courts of appeals. Plainly, the need for findings of

fact and conclusions of law that explain the disposi-

tion of a fee request is much less in this situation

than in cases originating in district court, where the

unsuccessful fee applicant may appeal as of right.

Establishing a record for appellate review is the pri-

mary purpose of such findings and conclusions. Cope-

land v. Marshall, 641 F.2d 880, 901 n.39 (D.C. Cir.

1980) (en banc); Murphy v. Kolovitz, 635 F.2d 662,

664 (7th Cir. 1981); Evans v. Sheraton Park Hotel,

503 F.2d 177, 188 (D.C. Cir. 1974). Moreover, the

requirements of Fed. R. Civ. P. 52(a) are not ap-

plicable to petitions for review in the courts of ap-

peals

The Court granted certiorari in Consolidated Freight ways

Corp. v. Kassel, No. 79-1618, to address this issue. 450 U.S.

1089 (1981). The writ of certiorari, however, was dis-

missed as improvidently granted. Consolidated Freightways

Corp. v. Kassel, No. 79-1618 (Feb. 23, 1982). Justice White

dissented from that disposition, stating that he would have

affirmed the decision of the court below, explaining that

there is no “per se rule that a court may never summarily

deny an application for fees.”

It may be that the better practice would have been

for the court of appeals to explain its decision, at

least briefly in an appropriate memorandum. Never-

theless, there is no occasion for further review in this

case. First, as is explained below (pages 9-15, infra),

the denial of attorney’s fees in this case was not an

abuse of discretion. In these circumstances, to vacate

the order of the court of appeals denying fees and

costs and remand for further proceedings would be a

sterile exercise that would needlessly prolong this

litigation. A case such as this is an unsuitable ve-

hicle for establishing criteria for the disposition of

attorney’s fees applications without opinion.

Second, the practice of summary disposition with-

out opinion is regularly employed by the courts of

appeals, not only for ancillary motions such as this,

but also for disposition on the merits of appeals from

district courts, in cases where the proper disposition

is clear, no precedent is needed or created, and the

disposition is fact-bound rather than based on recur-

ring questions of general importance.“ Summary dis-

positions, if not abused, are an acceptable response

to the problem of judicial management stemming

from burgeoning caseloads. Absent a showing that

the practice is being systematically abused in acting

on applications for attorney’s fees in connection with

petitions for review, we suggest that there is no com

pelling reason for this Court to intervene. See Con-

solidated Feightways Corp. v. Kassel, No. 79-1618

(Feb. 23, 1982) (White, J., dissenting from dismissal

See D.C. Cir. R. 18(c); Ist Cir. R. 14; 2d Cir. R. 0.28;

4th Cir. R. 7(b); 5th Cir. R. 21; 6th Cir. R. 9(d); 8th Cir.

R. 14; 9th Cir. R. 21; 10th Cir. R. 17 (b); 11th Cir. R. 25.

of writ of certiorari as improvidently granted) (see

page 7 note 3, supra).

3. In any event, the court of appeals’ determina-

tion that an award of attorney’s fees was not “appro-

priate” in the circumstances of this case entails no

abuse of discretion.

a. The court of appeals could properly have de-

termined that no award of fees or costs was war-

ranted because petitioner did not prevail in any re-

spect upon its single claim under the Clean Air Act.’

Petitioner seeks to obscure that failure by discussing

at length what it characterizes variously as “clean

air issues,” issues pertaining to “air quality * * *

protection,” “clean air protection[],” or “clean air

measures,” and as “clean air claims” or “clean air

relief” (Pet. 4, 5, 9, 10, 12, 18), on which it claims

to have achieved some measure of success, albeit only

in collateral administrative proceedings. But peti-

tioner’s semantic artistry should not be permitted to

disguise the fact that the issues upon which it has

allegedly prevailed arose only under the Clean Water

Act or, indirectly, the National Environmental Policy

Act. See pages 2-3, supra.“ Because neither of

5 Petitioner has apparently abandoned the contention ad-

vanced below that fees may be awarded directly under the

Clean Water Act. In this Court petitioner argues only that an

award of fees should have been made under Section 307(f)

of the Clean Air Act.

* In petitioner’s own words, petitioner’s claim was that the

permit issued under the Clean Water Act was invalid (Pet.

4)

because (1) EPA had denied [petitioner’s] request for

an adjudicatory hearing to consider the adequacy of the

EIS on which the permit decision was based, and (2) be-

cause the EIS was legally insufficient in its consideration

of important clean air issues, including the enforceabil-

10

those statutes makes provision for an award of attor-

ney’s fees, and because the courts ordinarily lack au-

thority to make such an award absent statutory au-

thority, see Alyeska Pipeline Co. v. Wilderness So-

ciety, 421 U.S. 240, 269 & n.44 (1975); 28 U.S.C.

2412, petitioner’s alleged success in administrative

proceedings in connection with certain claims under

these statutes can afford no basis for recovery of at-

torney’s fees.

Nor is there any basis in this case for petitioner’s

assertion (Pet. 9-10, emphasis added) that unless

fees are to be awarded for services performed in liti-

gation under statutes other than the Ciean Air Act

“the Agency would be able to insulate itself from the

attorney’s fee provisions of [that] Act * * * by plac-

ing controversial clean air measures in a plant’s”

Clean Water Act permit or environmental impact

statement. No such risk exists here because petitioner

has never urged in this case, nor could it, that the

claims it sought to raise under the National Environ-

mental Policy Act (see page 9, note 6, supra)

could properly have been framed as claims arising

under the Clean Air Act. Thus, this simply is not a

case where the agency might have sought to avoid an

adverse judgment under the Clean Air Act by settling

a valid claim without affording formal relief under

ity of [a restrictive] “stipulation” [incorporated in the

statement], and the failure to conduct modeling of the

plant’s effects on overall air pollution in the Ohio River

Valley and on acid rain.

None of these issues arose under the Clean Air Act. The only

Clean Air Act issue that was raised by petitioner was the

claim, rejected by the court of appeals (see pages 2-3, supra),

that EPA has improperly failed to provide a second comment

period on the terms of a proposed air pollution permit.

11

that Act. Petitioner’s reliance upon NEPA is an es-

pecially telling consideration, for where applicable that

statute will often require a broadly framed inquiry into

matters extending far beyond the requirements of ac-

tual regulatory pollution control legislation.’ Because

Congress has chosen not to authorize awards of attor-

ney’s fees under NEPA, while it has provided such

authority under the Clean Air Act, the courts are

required to be especially alert to distinguish between

claims that arise under the Clean Air Act and those

that do not in awarding fees.

Petitioner invokes (Pet. 11) an assertedly well

settled” rule that “where a party brings several dif-

ferent claims arising from ‘a common nucleus of op-

erative fact,’ and prevails upon one of these claims,

courts will award attorney’s fees on the basis of one

of the related claims.” The “rule” actually flows

from, and is limited to, the Civil Rights Attorney’s

Fees Award Act of 1976, 42 U.S.C. 1988. As this

Court stated in Maher v. Gagne, 448 U.S. 122, 132

n.15 (1980), the legislative history of that Act

The Energy Supply and Coordination Act of 1974, 15

U.S.C. 793(c) (1), provides that no action under the Clean

Air Act may be deemed a major federal action for NEPA

purposes. Congress has thus indicated that EPA’s actions

under the Clean Air Act are to be judged by reference to

the terms of that Act, and not by reference to the more open-

ended analysis contemplated by NEPA. However, because

the comparable provision of the Clean Water Act, 33 U.S.C.

1371 (e) (1), is less inclusive in some respects, an EIS was

prepared to accompany the Water Act permit challenged by

petitioner. Only thus was petitioner able to raise the “air

pollution” issues on which it claims to have partially pre-

vailed. Under the circumstances, it would be especially in-

appropriate to award attorney’s fees under the Clean Air Act

for legal services rendered in connection with petitioner’s

NEPA claim.

12

“makes it clear that Congress intended fees to be

awarded where a pendent constitutional claim is in-

volved, even if the statutory claim on which the plain-

tiff prevailed is one for which fees cannot be awarded

under the Act.” No comparable legislative history

exists under the Clean Air Act. Under these circum-

stances Congress’ decision not to provide for any

award of fees for petitioner’s litigation under NEPA

and the Clean Water Act must be honored.

As we have shown, the only claim resting upon the

Clean Air Act advanced by petitioner was that EPA

impermissibly omitted a second comment period re-

specting the terms of the Clean Air Act permit issued

to LG&E. This claim was rejected by the court of ap-

peals and was not the subject of any collateral ad-

ministrative proceedings. Petitioner’s argument (Pet.

13-15) that in enacting Section 307(f) Congress in-

tended that fees be afforded to parties that prevail as

a practical matter without actually securing a favor-

able final judgment is accordingly irrelevant to this

case. Petitioner gained no measure of success, formal

or informal, in judicial or administrative proceed-

ings, on its Clean Air Act claim.“

b. Petitioner argues, however (Pet. 15-16), that

an award of fees was required even if it is regarded

as having failed in all material respects upon its

claims. In support of that contention petitioner cites

Sierra Club v. Gorsuch, supra, and Northern Plains

Resource Council v. EPA, 670 F.2d 847 (9th Cir.

1982). These cases are, in our view, wrongly de-

® Petitioner’s attempt (Pet. 17) to find support for its posi-

tion in our petition in Gorsuch is accordingly unavailing.

Petitioner did not aid in rectification of any “administrative

error []“ under the Clean Air Act.

13

cided, as is explained in our brief in Gorsuch.“ But,

whatever this Court may ultimately decide in Gorsuch,

these cases provide no support for petitioner’s posi-

tion in this case. In Gorsuch, the D.C. Circuit made

clear that non-prevailing parties ordinarily will not

be entitled to an award of fees under Section 307(f),

describing such an award on an “exceptional” event.

672 F.2d at 39. Indeed, under the D.C. Circuit’s

view, with which we agree in this respect (see Brief

in No. 82-242 at 30), even a prevailing party must

demonstrate it has substantially contributed to attain-

ment of the goals of the Clean Air Act. Sierra Club

v. Gorsuch, supra, 672 F.2d at 38 n. S. Applying the

criteria employed by the D.C. Circuit, see 672 F.2d

at 38-41 & n.10, it is apparent that the relatively

simple question of administrative procedure addressed

by petitioner was not “important, complex [or]

novel” (id. at 39). And in view of the limited atten-

tion given this issue in petitioner’s briefs and oral

argument in the court of appeals, the court below

need not have concluded that petitioner’s “assistance

in the resolution of the issue[] was substantial” or

that the “caliber of [its] written and oral presenta-

tions was exemplary” (id. at 39) as did the D.C. Cir-

cuit in Gorsuch. Accordingly, even if Sierra Club v.

Gorsuch were correctly decided, it gives no comfort to

petitioner.”

A copy of that brief has been served upon petitioner to-

gether with this brief in opposition.

Because the Ninth Circuit has yet to fix the amount of the

award in Northern Plains Resource Council, its decision re-

specting attorney’s fees is not, as yet, final.

Reliance upon Northern Plains Resource Council, supra, is

likewise misplaced. In its brief order, the Ninth Circuit did

not identify the standard employed in determining whether

14

e. The court of appeals may also have moved to

deny petitioner’s application because of technical] de-

ficiencies therein. As noted above (pages 2, 9 note 6),

the heart of petitioner’s case was a claim under the

Clean Water Act and NEPA, statutes that do not au-

thorize any award of fees. Yet, petitioner’s fee appli-

cation failed to separately identify the time devoted to

the Clean Air Act aspect of the case. Moreover, most

of the time ostensibly expended on the Clean Water

Act and NEPA claims was devoted to a collateral ad-

ministrative proceeding, not to this litigation, and is

for that reason noncompensable. See Sierra Club v.

Gorsuch, supra, 672 F.2d at 42. In addition, peti-

tioner furnished no evidence at all of the reasonable-

ness of the hourly rates charged by its counsel in

connection with this case, although such a showing is

an essential element of a fee application. See Na-

tional Association of Concerned Veterans v. Secretary

of Defense, 675 F.2d 1319, 1324-1327 (D.C. Cir.

1982) (per curiam). Finally, petitioner’s application

rested almost entirely on a computer print-out gen-

erated for billing purposes. As EPA pointed out, and

as petitioner conceded in the court of appeals (Second

fees were properly awarded in that case, or even acknowledge

explicitly that the party to which fees had been awarded had

not prevailed on any aspect of its claim. In any event, assum-

ing that the Ninth Circuit employed criteria similar to those

adopted by the D.C. Circuit in Gorsuch, its decision does not

aid petitioner. A cursory comparison of the Ninth Circuit's

opinion on the merits of the complex and technical Clean Air

Act issues raised by the Northern Plains Resource Council,

see Northern Plains Resource Council v. EPA, 645 F.2d 1349

(1981), with the decision of the court of appeals below on the

merits of petitioner’s single Clean Air Act-related claim (Pet.

App. 4a-6a), readily demonstrates that the award in the

former case provides no precedent for a similar award here.

15

Affidavit of Duane Siler, attached to Petitioner’s Re-

ply Brief in Support of its Motion for Costs of Litiga-

tion), this print-out included some amount of attorney

time actually spent on unrelated matters, as well as

some attorney time that was incompletely identified.

In view of these alternative technical bases for denying

petitioner’s applications for fees and costs, no recur-

ring question cf general importance is presented by

that denial.”

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

ANNES. ALMY

MICHAEL W. STEINBERG

Attorneys

RoBERT M. PERRY

Office of General Counsel

Environmental Protection Agency

DECEMBER 1982