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COALEX STATE INQUIRY REPORT - 328

July 1995

Steven Lachman

Pennsylvania Department of Environmental Resources

400 Waterfront Drive

Pittsburgh, Pennsylvania 15222

TOPIC: ATTORNEYS' FEES 

INQUIRY: Please locate SMCRA-related cases from August, 1994 through July, 1995 

that rule on the award of attorneys' fees. 

SEARCH RESULTS: COALEX and LEXIS were used to research this Report which 

updates several earlier COALEX Reports on attorneys' fees. Included here are federal, 

state and administrative decisions ruling on the award of attorney's fees for SMCRArelated and other environmental law cases as well as copies of the earlier Reports 

(included without attachments). 

FEDERAL CASE LAW

KEY TRONIC CORP. v U.S., 114 S Ct 1960 (1994). [Excerpt]

CERCLA-related case.

PALUMBO v WASTE TECHNOLOGIES INDUSTRIES, 1994 U.S. App LEXIS 29355 

(4th Cir 1994).

RCRA-related case.

CITIZENS FOR A SUITABLE HIGHWAY v FORBES, 1995 U.S. App LEXIS 1178 (9th 

Cir 1995).

Clean Water Act-related case.

PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY v WINDALL, 51 F 3d 

1179 (3rd Cir 1995).

Clean Water Act-related case.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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POWDER RIVER BASIN RESOURCE COUNCIL v BABBITT, 54 F 3d 1477 (10th Cir 

1995).

"Section 1270(d) [of SMCRA] allows a court to assess costs against a party whenever it 

determines an award is appropriate. Nevertheless, a party must achieve at least some 

measure of success to warrant an attorney's fees award. See Ruckelshaus, 463 U.S. at 

688. Here, plaintiff did not extract any of the requested relief from the United States. 

Plaintiff asked the court to order the federal defendants to take one of the allegedly 

mandatory requirements in 30 C.F.R. 732,13(j)(4). The only action taken by the federal 

defendants, though, was approving Wyoming's revised attorney's fees plan. This action 

did not conform to any of the relief requested by plaintiff. Plaintiff did not prevail and 

therefore is not entitled to recover attorney's fees from the federal defendants."

The case was remanded "for a determination of whether attorney's fees may 

appropriately be assessed against the state". 

INTERIOR ADMINISTRATIVE DECISIONS

SAVE OUR CUMBERLAND MOUNTAINS, 127 IBLA 245, IBLA 88-519, 89-420 

(1993).

HEADNOTES: "In order for one who participates in an administrative proceeding 

reviewing an enforcement action to receive an award of costs and expenses under 43 

CFR 4.1294(a)(1), there must be a determination that (1) a violation of the Act, 

regulations, or permit has occurred, or that an imminent hazard existed; (2) the 

participant made a substantial contribution to the full and fair determination of the 

issues; and (3) the contribution was separate and distinct from the contribution made by 

the person initiating the proceeding."

GATEWAY COAL CO. v OSM, 131 IBLA 212, IBLA 91-243 (1994).

HEADNOTES: "No rational exists to justify an award of attorneys' fees from a permittee 

for work performed by petitioner's counsel challenging OSM's decision to vacate a 

notice of violation issued to the permittee."

SUNNYSIDE COGENERATION ASSOCIATED v OSM, Docket No. DV 94-11-R 

(1995).

"Sunnyside argues that it is entitled to an award of attorney's fees because OSM's 

enforcement actions against it were taken in bad faith and for purposes of harassing or 

embarrassing Sunnyside. However, Sunnyside effectively concedes that it is not entitled 

to attorney's fees if the NOV is valid." 

The NOV was found to be valid.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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STATE CASE LAW

MCDONALD LAND & MINING CO. AND SKY HAVEN COAL, INC. v DEPT. OF 

ENVIRONMENTAL RESOURCES (DER), 1995 Pa. Commw. LEXIS 362 (Pa Commw 

Ct 1995).

The court affirmed the ruling of the Environmental Hearing Board:

"[T]he Board held that Section 4(b) [of Pennsylvania SMCRA] provides for an award of 

fees only in proceedings brought pursuant to Section 4, which encompasses appeals 

from a permit denial, a bond release denial or a bond forfeiture, and not enforcement 

actions. Inasmuch as the compliance orders issued by the Department were 

enforcement actions, the Board held, McDonald and Sky Haven could not be awarded 

the fees and costs generated by their appeals therefrom. The Board further held that, 

given that McDonald failed to distinguish between the fees incurred in its appeal from 

the compliance order and its appeal from the bond release denial, it could receive no 

award under Section 4(b) of SMCRA."

PENNSYLVANIA DEPT. OF ENVTL. RESOURCES v MCDONALD LAND & MINING 

CO., 1995 Pa. Commw. LEXIS 363 (Pa Commw Ct 1995). 

The court affirmed the Board's awarding McDonald attorney's fees and costs under 

Section 3 of Pennsylvania's Costs Act. 

STATE EX REL. WEST VIRGINIA HIGHLANDS CONSERVANCY, INC. v WEST 

VIRGINIA DIV. OF ENVTL. PROTECTION, 457 SE 2d 88 (WV Ct App 1995).

SYLLABUS: "1. Costs and attorney's fees may be awarded in mandamus proceedings 

involving public officials because citizens should not have to resort to lawsuits to force 

government officials to perform their legally prescribed nondiscretionary duties.

"2. Attorney's fees may be awarded to a prevailing petitioner in a mandamus action in 

two general contexts: (1) where a public official has deliberately and knowingly refused 

to exercise a clear legal duty, and (2) where a public official has failed to exercise a 

clear legal duty, although the failure was not the result of a decision to knowingly 

disregard a legal command."

POWDER RIVER BASIN RESOURCE COUNCIL v WYOMING ENVTL. QUALITY 

COUNCIL, 869 P 2d 435 (Wy 1994).

The state court reversed the Wyoming Environmental Quality Council's ruling upholding 

the Wyoming Department of Environmental Quality's (DEQ) decision "that the agency 

had no authority to provide attorney's fees to citizen-group Powder River Basin 

Resource Council ('Powder River') after Powder River substantially prevailed in its 

administrative action against DEQ."
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PENNSYLVANIA ADMINISTRATIVE CASES

TOWNSHIP OF HARMAR v COMMONWEALTH OF PENN., DEPT. OF ENVTL. 

RESOURCES (DER), 1994 Pa. Envirn. LEXIS 53, EHB Docket No. 90-003-MJ (1994).

SYNOPSIS: "A petitioner is entitled to costs and attorney fees under Sec. 4(b) of 

SMCRA where the following four criteria are met: a final order has been issued, the 

applicant for fees and costs was the prevailing party, the applicant achieved some 

degree of success on the merits, and the applicant made a substantial contribution to a 

full and final determination of the issues."

LUCCHINO v COMMONWEALTH OF PENN., DEPT. OF ENVTL. RESOURCES, 1994 

Pa. Envirn. LEXIS 83, EHB Docket No. 91-0117-E (1994). 

SYNOPSIS: "Appellant's Petition under Section 4(b) of SMCRA for reimbursement of 

attorneys fees and costs is granted to the extent that Appellant has proven entitlement 

thereto. Where the Appellant fails to show that his counsel's fees are reasonable based 

on comparable fees in the legal market place, reimbursement of attorneys fees will be 

denied."

MCDONALD LAND & MINING, INC. AND SKY HAVEN COAL, INC. v 

COMMONWEALTH OF PENN., DEPT. OF ENVTL. RESOURCES, 1995 Pa. Envirn. 

LEXIS 5, EHB Docket No. 89-096-MJ consolidated with 89-556-MJ, 89-596-MJ, 89-

597-MJ (1995).

SYNOPSIS: "The Board denies Sky Haven's application for award of attorney fees and 

costs filed under Section 4(b) of SMCRA in connection with Sky Haven's successful 

challenge to the Department's issuance of two compliance orders. By its plain language, 

Sec. 4(b) does not apply to all actions under SMCRA but only to proceedings which 

arise under Sec. 4(b) of the act, which deals exclusively with permitting and bonds."

MCDONALD LAND & MINING, INC. AND SKY HAVEN COAL, INC. v 

COMMONWEALTH OF PENN., DEPT. OF ENVTL. RESOURCES, 1995 Pa. Envirn. 

LEXIS 7, EHB Docket No. 89-096-MJ consolidated with 89-556-MJ, 89-596-MJ, 89-

597-MJ (1995).

SYNOPSIS: "McDonald's application for an award of attorney fees and expenses under 

Sec. 4(b) of [SMCRA], Act of May 31, 1945, as amended, 52 P.S. Sec. 1396.1 et seq., 

at Sec. 1396.4(b), is denied. McDonald's application fails to distinguish between fees 

and expenses incurred in connection with its appeal of a bond release denial, which are 

recoverable under Sec. 4(b) and those fees and expenses incurred in connection with 

its appeal of the Department's issuance of a compliance order, which are not 

recoverable under Sec. 4(b). McDonald does, however, qualify for an award under the 

Costs Act in the maximum amount of $ 10,000."
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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BETH ENERGY MINING COMPANY v COMMONWEALTH OF PENN., DEPT. OF 

ENVTL. RESOURCES, 1995 Pa. Envtl. LEXIS 11, EHB Docket No. 87-131-MR 

(1995).

SYNOPSIS: "[A] party does not incur attorney's fees and costs if it has no obligation to 

pay those expenses."

MEDUSA AGGREGATES CO. v COMMONWEALTH OF PENN., DEPT. OF ENVTL. 

RESOURCES, 1995 Pa. Envirn. LEXIS 31, EHB Docket No. 94-324-E (1995).

SYNOPSIS: "A petition for attorney fees and costs filed under Sec. 4(b) of SMCRA and 

Sec. 307(b) of CSL is deficient on its face when it fails to contain any evidence from 

which the Board may assess the accuracy and reasonableness of the fees sought to be 

recovered by the petitioner".

MISC.

ANNOTATION, "Award of Attorneys' Fees Pursuant to Secs. 520(d), 520(f), 525(e), 

or 703(c) of [SMCRA]", 89 ALR Fed 170 (1994).

COALEX REPORTS

COALEX STATE INQUIRY REPORT - 120, "Attorneys' fees" (1989). 

COALEX STATE INQUIRY REPORT - 163, "Attorneys' fees" (1990).

COALEX STATE INQUIRY REPORT - 180, "Attorneys' fees in non-enforcement, 

non-adversarial proceedings" (1991).

COALEX STATE INQUIRY REPORT - 220, "Petitions for costs, expenses and 

attorney's fees" (1992).

COALEX STATE INQUIRY REPORT - 233, "Suspension or revocation of permit for 

insufficient information; liability for attorney's fees" (1992).

COALEX STATE INQUIRY REPORT - 266, "Attorneys' fees (Updates: 120, 163, 180 

& 220)" (1993).

COALEX STATE INQUIRY REPORT - 281, "Eligibility for attorney's fees" (1994).

ATTACHMENTS

A. KEY TRONIC COPR. v U.S., 114 S Ct 1960 (1994). [Excerpt] 

B. PALUMBO v WASTE TECHNOLOGIES INDUSTRIES, 1994 U.S. App LEXIS 

29355 (4th Cir 1994). 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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C. CITIZENS FOR A SUITABLE HIGHWAY v FORBES, 1995 U.S. App LEXIS 1178 

(9th Cir 1995). 

D. PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY v WINDALL, 51 F 

3d 1179 (3rd Cir 1995). 

E. POWDER RIVER BASIN RESOURCE COUNCIL v BABBITT, 54 F 3d 1477 

(10th Cir 1995). 

F. SAVE OUR CUMBERLAND MOUNTAINS, 127 IBLA 245, IBLA 88-519, 89-420 

(1993). 

G. GATEWAY COAL CO. v OSM, 131 IBLA 212, IBLA 91-243 (1994). 

H. SUNNYSIDE COGENERATION ASSOCIATED v OSM, Docket No. DV 94-11-R 

(1995). 

I. MCDONALD LAND & MINING CO. AND SKY HAVEN COAL, INC. v DEPT. OF 

ENVIRONMENTAL RESOURCES (DER), 1995 Pa. Commw. LEXIS 362 (Pa 

Commw Ct 1995). 

J. PENNSYLVANIA DEPT. OF ENVTL. RESOURCES v MCDONALD LAND & 

MINING CO., 1995 Pa. Commw. LEXIS 363 (Pa Commw Ct 1995). 

K. STATE EX REL. WEST VIRGINIA HIGHLANDS CONSERVANCE, INC. v WEST 

VIRGINIA DIV. OF ENVTL. PROTECTION, 457 SE 2d 88 (WV Ct App 1995). 

L. POWDER RIVER BASIN RESOURCE COUNCIL v WYOMING ENVTL. 

QUALITY COUNCIL, 869 P 2d 435 (Wy 1994). 

M. TOWNSHIP OF HARMAR v COMMONWEALTH OF PENN. DEPT. OF ENVTL. 

RESOURCES (DER), 1994 Pa. Envirn. LEXIS 53, EHB Docket No. 90-003-MJ 

(1994). 

N. LUCCHINO v COMMONWEALTH OF PENN., DEPT. OF ENVTL. RESOURCES, 

1994 Pa. Envirn. LEXIS 83, EHB Docket No. 91-0117-E (1994). 

O. MCDONALD LAND & MINING, INC. AND SKY HAVEN COAL, INC. v 

COMMONWEALTH OF PENN., DEPT. OF ENVTL. RESOURCES, 1995 Pa. 

Envirn. LEXIS 5, EHB Docket No. 89-096-MJ consolidated with 89-556-MJ, 89-

596-MJ, 89-597-MJ (1995). 

P. MCDONALD LAND & MINING, INC. AND SKY HAVEN COAL, INC. v

COMMONWEALTH OF PENN., DEPT. OF ENVTL. RESOURCES, 1995 Pa. 

Envirn. LEXIS 7, EHB Docket No. 89-096-MJ consolidated with 89-556-MJ, 89-

596-MJ, 89-597-MJ (1995). 

Q. BETH ENERGY MINING COMPANY v COMMONWEALTH OF PENN., DEPT. 

OF ENVTL. RESOURCES, 1995 Pa. Envtl. LEXIS 11, EHB Docket No. 87-131-

MR (1995). 

R. MEDUSA AGGREGATES CO. v COMMONWEALTH OF PENN., DEPT. OF 

ENVTL. RESOURCES, 1995 Pa. Envirn. LEXIS 31, EHB Docket No. 94-324-E 

(1995). 

S. ANNOTATION, "Award of Attorneys' Fees Pursuant to Secs. 520(d), 520(f), 

525(e), or 703(c) of [SMCRA]", 89 ALR Fed 170 (1994). 

T. COALEX STATE INQUIRY REPORT - 120, "Attorneys' fees" (1989). 

U. COALEX STATE INQUIRY REPORT - 163, "Attorneys' fees" (1990). 

V. COALEX STATE INQUIRY REPORT - 180, "Attorneys' fees in non- enforcement, 

non-adversarial proceedings" (1991). 
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U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 7 of 7

W. COALEX STATE INQUIRY REPORT - 220, "Petitions for costs, expenses and 

attorney's fees" (1992). 

X. COALEX STATE INQUIRY REPORT - 233, "Suspension or revocation of permit 

for insufficient information; liability for attorney's fees" (1992). 

Y. COALEX STATE INQUIRY REPORT - 266, "Attorneys' fees (Updates: 120, 163, 

180 & 220)" (1993). 

Z. COALEX STATE INQUIRY REPORT - 281, "Eligibility for attorney's fees" (1994).