UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


DAVIS CTY SOLID WST

v.

EPA


95-1611c

D.C. Cir. 1999


*	*	*


Opinion for the Court filed Per Curiam.


Per Curiam: In 1995 the Environmental Protection Agency  ("EPA")
promulgated standards pursuant to the Clean Air  Act governing the
combustion of municipal solid waste  ("MSW"). See Standards of
Performance for New Stationary  Sources and Emission Guidelines for
Existing Sources: Mu- nicipal Waste Combustors, 60 Fed. Reg. 65,387


standards addressed the emissions of various substances and  mixtures
such as mercury and hydrogen chloride. Davis  County Solid Waste
Management and Energy Recovery Spe- cial Service District ("Davis
County" or "petitioner") and  others challenged the standards,
arguing, inter alia, that  EPA exceeded its statutory authority
"because [the stan- dards] are based on the aggregate MSW combustion
capacity  ("MSW capacity") of the plant at which a [municipal waste 
combustor] unit is located, rather than on the MSW capacity  of the
[municipal waste combustor] unit." See Davis County  Solid Waste
Management v. United States EPA, 101 F.3d  1395, 1397 (D.C. Cir.
1996), amended by 108 F.3d 1454 (D.C.  Cir. 1997) (per curiam). We
agreed, vacated the standards in  part, and remanded to EPA. See id.
at 1411-12, amended by  108 F.3d at 1460.


The Clean Air Act provides for the recovery of litigation  costs: "In
any judicial proceeding under this section, the  court may award costs
of litigation (including reasonable  attorney and expert witness fees)
whenever it determines  that such award is appropriate." 42 U.S.C. s
7607(f)  (s 307(f) of the Clean Air Act). After negotiations between 
Davis County and EPA over the proper level of recovery  failed, Davis
County petitioned the court for an award of  $323,782.21 (subsequently
revised to $314,074.71).1 EPA con- cedes that an award of litigation
costs is appropriate but  disputes the amount. Specifically, EPA
argues that (1) the  fees paid to Dr. H. Gregor Rigo, who petitioner
characterizes  as an "expert witness," should not be recovered, (2)
attorney  fees calculations should not be based on District of
Columbia  rates because Davis County was represented by a Salt Lake 
City firm, and (3) the number of hours for which Davis  County seeks
compensation is excessive.2 We agree with 




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n 1 We note that Davis County erred in adding its own section-by-
section subtotals in computing the attorney fees portion of this 
figure and that its own numbers actually add up to $310,074.71.


2 EPA does not object to the $9,724.48 in costs claimed by Davis 
County, covering such expenses as Westlaw, copying, and delivery 
charges. In light of our decision that Davis County is not entitled 


EPA in large part and remand to the agency for renewed  negotiations
based on the principles and guidance set forth  herein.


I. Discussion


A.Expert Witness


The Clean Air Act litigation costs provision explicitly in- cludes
expert witness fees. On this basis, Davis County  seeks reimbursement
of $79,130.48 charged by Dr. Rigo.3  Petitioner claims that Rigo is
properly considered an "expert  witness" because he analyzed the
regulations and the docket  and provided two technical affidavits
about the impact the  regulations would have on Davis County. The
affidavits,  which are largely identical, were submitted as support to
this  court with the motions to expedite review and to stay the 
effective date of the new standards. EPA objects to this  amount in
its entirety, arguing that Rigo was a technical  consultant hired by
Davis County to help its attorneys "deal[ ]  with the technical nature
of the subject matter," not to appear  as an expert witness. EPA
relies on Sierra Club v. EPA, 769  F.2d 796, 812 (D.C. Cir. 1985),
where this court held that the  Clean Air Act's litigation costs
provision did not cover a  $1,616 claim for "a 'technical consultant'
who aided the peti- tioners in preparing their case": "We do not read
section  307(f)'s waiver of sovereign immunity so broadly as to allow 
for fees in connection with the services of outside, nontestify- ing
experts." The court implied that had expert testimony  been provided
to the court instead of review being based  entirely on the




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n to fees based on District of Columbia rates, see infra section I(B), 
we expect that in further negotiations on remand Davis County will 
seek additional costs for travel that it omitted from the motion 
under review. Davis County has stated its intent to do so should  we
reject an award based on Washington rates, and we believe such  costs
an appropriate subject for negotiation.


3 This is the figure listed in petitioner's initial brief and Dr.
Rigo's  affidavit. The figure in the reply brief is eight cents


been appropriate. This suggests that expert testimony need  not be
given in a trial to fall within 42 U.S.C. s 7607(f).


To the extent that Rigo's charges reflect time necessary for  the
preparation of his affidavits, they are properly recovera- ble. In its
motions to expedite and for a stay Davis County  sought to demonstrate
to the court the practical effect of the  new regulations, a technical
matter more suited for an expert  engineer than a lawyer. It is
unclear from the itemized  billing included with Rigo's affidavit on
the fee issue precisely  how much time is directly attributable to the
two earlier  affidavits, but our perusal suggests it may not amount to
 more than 16 hours of his own time and 18.5 hours of staff  time,
totaling $3,481.01.4 The rest of his time seems to be  related to
analyzing the material in the rulemaking docket  and helping Davis
County's attorneys brief the case, prepare  for oral argument, and
prepare for a settlement meeting with  EPA. Indeed, the affidavit
submitted by Rigo on the fees  issue states that "I and my
professional staff have performed  various analyses and other
background work for the briefing  as requested by [Davis County's]
lawyers." This advisory  function appears to fall within the


Davis County argues in the alternative that it should at  least be
compensated for Rigo's fees through the filing of the  motion for a
stay ($45,370.77). There is no indication, howev- er, that all of his
work up to that point is properly allocated to  preparation of the
affidavits, as opposed to general consulting  on the case. Some of his
work at this stage was probably  necessary for Rigo to arrive at the
conclusions explained in  his affidavits, but on this record, there is
no reason to believe  all of this time was so utilized.


B.Appropriate Hourly Rates


Davis County also seeks $221,219.75 in attorney fees. At- torney fees
are explicitly permitted by section 7607(f), but the 




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n 4 These numbers reflect charges where the "description of ser- vices
rendered" plainly indicates work on the affidavits. Because  some
entries (such as the one for staff member K.A. Sherwood on  December
7, 1995) give several descriptions but only one figure for  hours,
even these numbers could be too high.


statute does not specify the location in which the hourly rate  will be
computed, i.e., the situs of the law firm or the situs of  the legal
proceedings. Davis County's lodestar calculation is  based on District
of Columbia rates (discounted by $5-$60/ hour "to account for ...
inefficiencies") although the case was  handled by a Salt Lake City
firm. EPA states that Davis  County's settlement offers on the fees
issue were based on its  normal billing rates; Davis County states
that its offers  reflected "significant discounts" from D.C. rates.
EPA ac- knowledges that Davis County is entitled to attorney fees, but
 argues that D.C.'s rates--which appear to be approximately  70%
higher--are not the correct ones.


In defending its use of D.C. rates, Davis County cites  several cases
for the proposition that the location of the court  deciding the case
is normally the relevant market. The sole  D.C. Circuit case cited,
Donnell v. United States, 682 F.2d  240, 251-52 (D.C. Cir. 1982),
awarded D.C. rates to Mississip- pi lawyers who handled a voting
rights case, including trial, in  this circuit, even though much of
the preparation work was  performed in Mississippi. Assuming the
normal rule is that  the rate is based on the forum of the litigation,
not the  business location of the lawyers, we recognized that the rule
 has an exception--when an out-of-town attorney is used  because of
special expertise or the unwillingness of local  counsel to take the
case, out-of-town rates apply; as long as  local attorneys are
available and competent to handle the  case, however, local rates
should prevail. See id.; National  Wildlife Fed'n v. Hanson, 859 F.2d
313, 317-18 (4th Cir.  1988); In re "Agent Orange" Prod. Liab. Litig.,
818 F.2d 226,  232 (2d Cir. 1987). Based on this exception, the
Donnell  court made the fee calculation for one attorney on (lower) 
Mississippi rates because he was retained due to his expertise  on a


EPA would distinguish Donnell and other cases cited by  Davis County as
involving situations where "a substantial  part of the attorneys' work
took place, as was the case in  Donnell where a trial was conducted,
in the venue where the  prevailing market rate was applied." This
distinction, howev- er, is certainly not made explicit in Donnell. In
Donnell, the 


court did not distinguish between work performed in-town  and
out-of-town while discussing the question of the appropri- ate rate.
It observed that, "[a]lthough there may be cases,  such as this one,
where much of the work must be performed  away from the district
court's community, we do not believe  that this alone provides a
sufficient reason for deviating from  the general rule." Donnell, 682
F.2d at 252. Thus, the court  awarded D.C. rates for one attorney
whose only involvement  was preparing the fee application, a task she
performed in  her Mississippi office. Nor do the other cases cited by
Davis  County appear to turn on where any particular portion of the 
work was performed or whether a trial or appellate court was 


Were we to adhere strictly to Donnell, D.C. rates would be  the
appropriate ones to use in calculating Davis County's  attorney fees
award as this case was before a D.C. court and  could have been
handled by D.C. attorneys. For reasons we  now explain, however, we
decline to follow Donnell to the  extent it dictates this result, and
hold instead that Davis  County's fee award should be based on Salt
Lake City rates.  Although the forum rate rule has been widely
adopted, we  have found few cases applying the rule in situations like
the  one we face, where out-of-jurisdiction lawyers would receive 
substantially higher rates than they ordinarily command for  work done
almost exclusively in their home territory. But  see Garmong v.
Montgomery County, 668 F. Supp. 1000, 1007  (S.D. Tex. 1987); Mary
Frances Derfner & Arthur D. Wolf,  Court Awarded Attorney Fees p
16.03[8], at 16-103 (1997)  ("[T]he rule is equally applicable where
counsel's customary  rates are lower. In that event, out-of-town
counsel can  recover the higher forum rate."). The combination of
these  two factors along with intervening decisions by the Supreme 
Court impels us to create a second exception to Donnell for  cases
where the bulk of the work is done outside the jurisdic- tion of the
court and where there is a very significant  difference in
compensation favoring D.C. This exception  would not alter the fee
award in most instances as most cities'  rates are on a par with our
own, see National Survey Ctr.,  Partner, Associate & Legal Assistant


Law Firms, National Edition 3-4 (1998), but it would pre- vent the
occasional erratic result where the successful peti- tioner is vastly
overcompensated given the amount he con- tracted to pay for legal
services. In all other cases the D.C.  forum rates would apply.


Donnell offered two rationales for the forum rate rule.  First,
administrative ease: "It requires the district court  normally to
determine only the prevailing market rate within  its jurisdiction, an
inquiry about which it should develop  expertise." Donnell, 682 F.2d
at 251. Second:


[I]t is a neutral rule which will not work to any clear  advantage for
either those seeking attorneys' fees or  those paying them.
High-priced attorneys coming into a  jurisdiction in which market
rates are lower will have to  accept those lower rates for litigation
performed there.  Similarly, some attorneys may receive fees based on 
rates higher than they normally command if those higher  rates are the
norm for the jurisdiction in which the suit  was litigated.


Id. at 251-52. A Third Circuit task force offered similar  reasons for
preferring the forum rate rule:


The Task Force acknowledges that standardized rates  applicable to all
types of cases, even when broken into  categories, will
undercompensate certain attorneys and  overcompensate others.
Nonetheless, it concludes that  the objectivity and efficiency that
would be achieved by  using uniform rates is preferable to the current


Court Awarded Attorney Fees, Report of the Third Circuit  Task Force,
108 F.R.D. 237, 261 (1985) (footnote omitted).  We consider these
reasons sufficient to justify awarding fees  based on rates charged in
the District of Columbia to all  lawyers except those few who practice
in far less expensive  legal markets and perform the bulk of their
work on the case  at home in those markets. Cf. Blanchard v. Bergeron,
489  U.S. 87, 96 (1989) (reasonable attorney fee award may be  higher
than fee called for by contract between prevailing  client and


Because we have simplified the process for calculating  reasonable
attorney fee awards since Donnell was decided,  the administrative
ease rationale it relied on carries less  weight today. In 1982, the
twelve-factor inquiry put forth by  the Fifth Circuit in Johnson v.
Georgia Highway Express,  Inc., 488 F.2d 714, 717-19 (5th Cir. 1974),
and adopted by us  in Evans v. Sheraton Park Hotel, 503 F.2d 177,
187-88 (D.C.  Cir. 1974), was still central to the lodestar approach.
See  Jordan v. United States Dep't of Justice, 691 F.2d 514, 518 & 
n.28 (D.C. Cir. 1982). The lodestar approach has become  significantly
simpler since then, see Pennsylvania v. Dela- ware Valley Citizens'
Council for Clear Air, 478 U.S. 546,  564-65 (1986), reducing the
likelihood that lack of knowledge  of a litigator's home community
will hinder a court shaping a  fee award.5 Nonetheless there is reason
to continue using  the D.C. rates when they are not significantly
higher than  out-of-town rates or when most of the work is in fact


We think the neutrality rationale in Donnell is still suffi- cient to
justify forum rates in all but the extreme situation we  face here. We
will presume that Washington rates will apply  so long as the judicial
forum is here, unless the work done  here is minimal and the
difference in rates substantial. Like  basing awards on the situs of
the work performed, the use of  Washington rates is neutral in that it
does not afford an  automatic advantage to either prevailing or losing
parties.


While both approaches can thus be termed neutral, we find  the use of
home market rates is preferable when the home  market is substantially
less costly and the site of the bulk of  the legal work because it
produces a result that better  reflects the purpose of fee shifting
statutes. "[T]he aim of  such statutes [i]s to enable private parties
to obtain legal help  in seeking redress for injuries resulting from
the actual or 




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n 5 Difficulty in applying the twelve factors to out-of-town lawyers 
is not explicitly mentioned in Donnell. Because the factors were so 
much a part of the fee award landscape at the time, though, we 
believe the court must have had this difficulty in mind when it 
extolled the simplicity of using the forum rate.


threatened violation of specific federal laws." Delaware Val- ley, 478
U.S. at 565. Parties should be just as able to obtain  such help when
fees are based on the jurisdiction in which the  clients and the
lawyers reside and practice as if those fees are  based solely on the
judicial forum. While limiting lawyers to  less than their usual rates
would present problems for private  parties seeking help, limiting
lawyers to what they normally  receive in their home market should
not. Conversely, while  awarding higher Washington rates would not
make it harder  for parties to find counsel, it would produce
windfalls incon- sistent with congressional intent. See id. ("[t]hese
statutes  were not designed as a form of economic relief to improve
the  financial lot of attorneys"); City of Riverside v. Rivera, 477 
U.S. 561, 580 (1986) (plurality) (Congress did not intend  statutory
fee awards to produce windfalls).


Our decision today is confined to the situation before us  and effects
a limited exception to Donnell. In this case, as  far as we can tell
from the record, virtually all of the work  was performed in Utah, the
less expensive legal market. The  only time spent in Washington by
Davis County's lawyers, as  far as the record reflects, was for the
purpose of examining  the administrative docket and participating in a
short oral  argument. In a case where out-of-town lawyers must spend 
much more time in Washington--for example, when a lengthy  trial is
held--a different analysis favoring an award of D.C.  rates is


Nor do we suggest that the Donnell rule should no longer  be applied
when lawyers from a more expensive market  litigate here. In fact,
consideration of the purpose of fee  shifting statutes suggests
preserving the Donnell rule and  not adopting a home market rate
presumption on such facts.  As long as there are lawyers here who are
competent to  handle a case, the party seeking legal assistance will
be able  to find it even if the potential fee award is limited to D.C.
 rates instead of higher home market rates. On the other  hand, when a
party deliberately chooses pricier out-of-town  lawyers who will be
undercompensated relative to their nor- mal rates, the principal
purpose of the fee shifting laws, i.e.,  to assure adequate counsel,
will not be impugned. The 


exception to the Donnell rule allowing home market rates for 
attorneys from a more expensive jurisdiction when lawyers in 
Washington are not available or competent to handle the case  remains
in place. This exception reflects a proper concern  with protecting
the ability of a private party to attract a  lawyer.


C.Number of Hours Devoted to the Case


EPA also contends that Davis County is seeking recovery  for a
substantially excessive number of hours. EPA notes  that the other
petitioners received only $58,000 (Waste Ener- gy Partners ("WEP"))6
and $61,749 (Cement Kiln Recycling  Coalition)7 in fees and costs, and
argues that Davis County's  attorneys could not reasonably have been
required to work so  many more hours on the same appeal as to justify
this much  greater award.


Arguing that the awards to the other petitioners should not  serve as a
reference for its request, Davis County notes that  the motions to
expedite and for a stay were prepared by its  attorneys alone, and
that these motions required extensive  work. Davis County also states
that it briefed and argued  one of the principal issues (whether the
EPA's rule was  arbitrary and capricious) alone and that this issue
consumed  60% of its billing hours.8 Davis County also asserts that it
 has voluntarily reduced its billable hours by at least 10%.


It is difficult for us to determine on the record before us  precisely
how much time Davis County is claiming for each  litigation-related
task. Although its time is broken down into 




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n 6 This was a settlement after a request for $64,362.


7 The court determined this amount after a request for $77,187.


8 The court did not reach the arbitrary and capricious challenge, 
deciding the case on Chevron step one. Given Davis County's  success
in the case, however, the time its attorneys spent on  alternative
grounds should not be used to reduce its award. See  Hensley v.
Eckerhart, 461 U.S. 424, 435 (1983); see also Goos v.  National Ass'n
of Realtors, 68 F.3d 1380, 1385 (D.C. Cir. 1995),  clarified on denial
of reh'g, 74 F.3d 300 (D.C. Cir. 1996).


subsections, the subsections themselves include several differ- ent
tasks. The breakdown is as follows:


Fee9 Hours10 Task $26,620 133.25 prefiling research, preparation, and 
evaluation of case, and preparation of  petition for review $14,610
69.75 preparation of court docketing mate- rials, and research and
preparation of  motion to expedite and application  for stay $14,430
66.50 research for briefs and motions; re- ply on motion to expedite;
deal with  appendix, consolidation and briefing  issues; general case
management $44,710 232.50 drafting of opening brief; motion to  stay;
general case management $9,211.50 44.90 deal with stay issues;
research and  respond to motion for voluntary re- mand; errata for
opening brief $21,682.50 109.75 appendix and reply brief $38,965
159.00 preparation for oral argument and oral  argument; settlement
discussion $50,990.75 272.20 post argument work Many of the itemized
descriptions (such as "telephone confer- ence with Bill Evans") within
the subsections are too vague to  identify with any particular task.


We do conclude, however, that the total number of hours  claimed by
Davis County seems unreasonably high. Davis  County lists around 160
or 170 hours consumed in prepara- tion for oral argument and the
argument itself (the itemiza- tion makes an exact determination
difficult). In American 




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n 9 These fee subtotals are based on Washington rates that we have 
already concluded are too high.


10 Davis County did not total the number of hours spent on each 
subsection. These figures are based on our own review of the 


Petroleum Inst. v. United States EPA, 72 F.3d 907, 917 (D.C.  Cir.
1996), the court found unreasonable a fee petition seeking  recovery
for 116.25 hours spent by a partner on oral argu- ment and reduced the
figure to 80, allowing 10 hours billed by  another lawyer and a
paralegal to stand. WEP listed 23.65  hours on oral argument (Davis
County and WEP split the  argument).


Three entries from late September, 1997, are duplicated.  In response
to EPA's observation about duplicated entries,  Davis County deleted
several from January, 1997, but neither  party noticed the September
entries.


EPA objects to time spent by a senior attorney at $265/ hour on basic
research. For example, on 2/15/96, the attor- ney is listed for 4.5
hours for "research regarding court  obligation to defer to agency
construction when statutory  language is plain." Billable hours in fee
applications are  susceptible to reduction for failure to allocate
tasks efficiently  to different attorneys based on experience. See
Sierra Club,  769 F.2d at 807-08. Beyond the particular examples cited
by  EPA, it seems to us the hours devoted to research throughout  the
itemization are allocated to relatively senior attorneys  more
frequently than seems justifiable.


Duplication of effort is another basis on which Davis Coun- ty's hours
seem excessive. See Environmental Defense  Fund, Inc. v. Reilly, 1
F.3d 1254, 1258 (D.C. Cir. 1993).  Davis County seeks recovery for the
time of ten different  attorneys (or nine and one law clerk). Although
this alone  may not be a reason to eliminate hours, see Donnell, 682
F.2d  at 250 n.27, it appears to have resulted in multiple attorneys 
performing the same tasks. For example, two attorneys are  listed at
different points as drafting the attorney fees applica- tion, while a
third had been listed months earlier for "work on  fee application."
Similarly, there appears to have been an  unusually high number of
attorneys reviewing and editing  briefs.


Hours may also be rejected when work descriptions are so  general that
a court cannot ascertain the reasonableness of  the time claimed. See
American Petroleum Inst., 72 F.3d at  915, 917. Davis County's fee
petition is illustrative of this  problem in many places.


On the other hand, we are not persuaded by EPA's sugges- tion that the
number of billable hours listed by Davis County  on the fees issue is
excessive simply by virtue of that number.  As EPA notes, it is hard
to tell just how much time Davis  County is listing for recovery of
fees, but by our calculation it  appears to be at least 125 hours.
Because the itemization is  often vague, the number might be
substantially higher.11  EPA cites American Petroleum Inst., 72 F.3d
at 918, which  reduced the award for time spent on a fee petition to
30  partner and 60 associate hours. The 90 hours in American 
Petroleum Inst. only covered the fee petition, however,  whereas the
billable hours listed by Davis County also cover  negotiations over
the fee. Still, Waste Energy Partners  requested only 98 hours for all
post-argument work and the  section of Davis County's billable hours
itemization suffers  from some of the other defects we have already


Based on these considerations and with the goal of provid- ing guidance
to the parties on remand, we list the following  amounts as falling
within a reasonable range for the catego- ries of work listed. The
reductions are meant not as the final  word on what Davis County can
seek or EPA can agree to,  but rather as what we might have expected
in an appeal of  this kind compared to others similar both in
complexity and  end product. The Utah rates we use are based on those
used  by Davis County in its 1997 fee proposal to the government,  as
evidenced by an attachment to EPA's brief. Because the  record is not
sufficiently clear for us to conclude that these  are the proper
rates, the parties may also need to address  this subject on remand.


Fee Reduced to Reduced to #Hours #Hours  Request @ D.C. rates @ Utah
rates Requested reduced to Category $26,620 $11,060 $6,398.75 133.25
56.75 refiling re- search,  preparation,  and evalua- tion of case, 
and prepa- ration 


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n


11 In its reply, Davis County claims it spent only 99 hours on all 
aspects of recovering fees. The substantial difference may reflect 
the imprecision in Davis County's itemization.


Fee Reduced to Reduced to #Hours #Hours  Request @ D.C. rates @ Utah
rates Requested reduced to Category of petition  for review $14,610
$7,215.50 $3,875 69.75 33.50 preparation  of court docketing materials
and re- search and preparation of motion to expedite and application
for stay $14,430 $7,075 $4,440 66.50 34.50 research for  briefs and 
motions; re- ply on mo- tion to expe- dite; deal  with appen- dix,
consoli- dation and  briefing is- sues; gener- al case man- agement
$44,710 $27,677.50 $16,819 232.50 142.70 drafting of  opening  brief;
mo- tion to stay;  general case  management $9,211.50 $4,594 $2,827
44.90 21.15 deal with  stay issues;  research  and respond  to motion 
for volun- tary re- mand; er- rata for  opening  brief $21,682.50
$12,970 $7,765 109.75 66.25 appendix  and reply  brief $38,965
$12,627.50 $7,062.25 159.00 49.00 preparation  for oral ar- gument and
 oral argu- ment; set- tlement dis- cussion


Fee Reduced to Reduced to #Hours #Hours  Request @ D.C. rates @ Utah
rates Requested reduced to Category $50,990.75 $31,645.50 $17,418.25
272.20 160.10 post argu- ment work 


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n  $221,- $114,865 $66,605.25 1,087.85 563.95 219.7512


II. Conclusion


The petition is remanded to EPA for the parties to renew  negotiations
in accordance with the principles and guidance  set out in this
opinion.


So ordered.




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n 12 Davis County incorrectly totaled these numbers to $225,219.75.