A recent Law 360 story by Matthew Santoni, “Terris Pravlik Seeks $16.3M in Fees for PPG Cleanup Suit”, reports that Washington, D.C., law firm Terris Pravlik & Millian wants PPG Industries Inc. to pay nearly $16.3 million in attorney fees and costs for more than a decade of litigation that led to cleanup efforts at a Western Pennsylvania waste site, telling a federal court it should be paid at D.C. rates because no firm in Pennsylvania would have taken the case.

TPM said in its motion for attorney fees that no one local would have been willing to front the $2 million in expert fees and spend a decade litigating the citizens enforcement suit on behalf of PennEnvironment and The Sierra Club in order to get PPG to clean up its waste site outside Ford City, Pennsylvania, and that the Third Circuit had previously approved paying the firm based on the rates commanded on its home turf in two other similar suits.

Because the environmental groups had gotten PPG to agree to clean up the site — litigation over whether the company should pay civil penalties was still pending — TPM said PPG was now responsible for paying its fees, costs and local counsel for the part of the suit where the plaintiffs had been successful, for a total of $16.25 million.

"There are no similar firms in Pittsburgh or elsewhere in the Western District of Pennsylvania that are willing to undertake such representation without contemporaneous compensation, let alone shouldering out-of-pocket costs over two million dollars — or even just one million dollars — with the risk that a litigation loss would result in no compensation or reimbursement," said the brief in support of TPM's fee petition, filed July 1.  Broken down, TPM sought $14.1 million in fees based on the hours spent and the current rates for comparable attorneys in D.C., $85,110 for its local counsel at Comber Miller LLC, and more than $2 million for its out-of-pocket expenses.

PennEnvironment and The Sierra Club had sued PPG in 2012 under the Clean Water Act and the Resource Conservation and Recovery Act, for what they claimed was decades of pollution at the company's waste site along the Allegheny River.  As part of the settlement reached in March 2021, PPG agreed to get permits from the state for treating and discharging water from the 77 acres of "slurry lagoons" holding waste from a glass plant, would cover and remediate other waste left in the ground, and would pay $250,000 to a Pennsylvania nonprofit water research center.

The deal did not address what, if any, civil penalties PPG would pay; the company had contested that it had already been held accountable for its discharges in a 2015 court order.  But the deal was enough to consider the environmental groups as the prevailing party, and TPM said the court should now determine how much PPG owed the law firm for its work leading up to the settlement under the fee-shifting provisions of the CWA and the RCRA.

TPM pointed to previous litigation where it had represented a different plaintiff, Interfaith Community Organization, against Honeywell International in a New Jersey federal court.  In two separate decisions, TPM said, the Third Circuit said there could be an exception to the general rule that out-of-town counsel gets paid at the prevailing rate for local lawyers.  "The court of appeals concluded that TPM should receive fees based on District of Columbia rates, where TPM is located, rather than northern New Jersey rates because no attorneys in northern New Jersey would be willing to bring those cases without the guarantee of payment of their fees and expenses," the brief said.

Since TPM is a public interest firm that does not typically charge its clients an hourly rate upfront, it calculated its "lodestar" fee request by looking at what other lawyers who practice complex federal litigation in the District of Columbia charge.  A legal economics expert put those rates at $900 to $1,600 per hour for a partner, $450 to $750 an hour for associates, and $275 per hour for paralegals and law clerks, the brief said.

Those rates were based on the current year, not back when the case started, but the delay in getting paid justified calculating the whole award based on the higher, current rates, TPM said.  TPM said the penalty phase of the case was still pending, so the fee request only covered the work that went into securing the settlement, though there was some overlap of work that applied to both parts.  As a result, the firm asked the court to hold back on 5 percent of the fee award, if approved, to be contingent on the plaintiffs prevailing in the penalty phase as well.