Opinion
2018-067-C
05-11-2022
LYNDA WILLIAMS v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and ESTATE OF HARRY SIMON, Permittee
DEP, General Law Division: Attention: Maria Tolentino (via electronic mail) For the Commonwealth of PA, DEP: William J. Gerlach, Esquire (via electronic filing system) For Appellant: Kenneth T. Kristl, Esquire (via electronic filing system) For Permittee: Michael T. Shiring, Esquire (via electronic filing system)
DEP, General Law Division: Attention: Maria Tolentino (via electronic mail)
For the Commonwealth of PA, DEP: William J. Gerlach, Esquire (via electronic filing system)
For Appellant: Kenneth T. Kristl, Esquire (via electronic filing system)
For Permittee: Michael T. Shiring, Esquire (via electronic filing system)
OPINION AND ORDER ON APPLICATION FOR FEES AND COSTS
MICHELLE A. COLEMAN, JUDGE
Synopsis
The Board defers ruling on an appellant's application for attorney's fees and costs while a remand of the underlying NPDES permit is being conducted following a Board Adjudication and Order. The Board stays the application, but the appellant may move to lift the stay if the work on remand does not proceed with appropriate dispatch before the Department and the Conservation District.
OPINION
Lynda Williams appealed NPDES Permit No. PAD150046 issued by the Department of Environmental Protection (the "Department") to the Estate of Harry Simon (the "Estate") for earth disturbance activities and the discharge of stormwater associated with a subdivision project at the Estate's property at 1364 Grove Road in West Whiteland Township, Chester County. In her appeal, Ms. Williams raised issues about the lack of riparian forest buffers for the project in service of her overarching concern that the subdivision development would result in more stormwater runoff on Grove Road and at her nearby home. On September 17, 2021, we issued an Adjudication and Order remanding the permit back to the Department because we determined, among other things, that the Department and the Chester County Conservation District did not properly account for the regulatory riparian forest buffer requirements for both a previously unidentified stream on the project site and a stream across the road from the project site. Williams v. DEP, 2021 EHB 232.
Within 30 days of the issuance of our Adjudication, Ms. Williams submitted an application for costs and fees seeking an award pursuant to Section 307(b) of the Clean Streams Law, 35 P.S. § 691.307(b). After receiving the application, we held a conference call with the parties to discuss logistical and scheduling issues moving forward on the application. The parties agreed on a timeframe for the Department to respond to the fees application along with a memorandum of law, and for Ms. Williams to then file a reply brief. The parties agreed that no discovery or evidentiary hearing would be necessary for the resolution of the application. The Estate participated in the conference call but indicated that it did not intend to take part in the fees proceedings since Ms. Williams is only seeking to recover fees from the Department and not the Estate. We issued an Order memorializing the schedule to which the parties had agreed. In her application, Ms. Williams sought an award of $132,930 in attorney's fees, $12,074.01 in expert witness fees, and $3,022.20 in costs. Ms. Williams has since amended her request for attorney's fees to include the time her counsel spent working on the reply brief to the Department's response to her application ($4,200) and her work responding to a motion to strike filed by the Department ($1,500), bringing the aggregate total to $153,726.21.
Section 307(b) of the Clean Stream Law provides in pertinent part: "The Environmental Hearing Board, upon the request of any party, may in its discretion order the payment of costs and attorney's fees it determines to have been reasonably incurred by such party in proceedings pursuant to this act." 35 P.S. § 691.307(b).
In an Opinion and Order issued on January 13, 2022, we denied the Department's motion to strike portions of a supplemental declaration submitted by counsel for Ms. Williams in her reply brief.
In the Department's response to the application, in addition to generally contesting Ms. Williams's right to recover an award, it argues that deciding the application now would be premature because the Department asserts our Adjudication is not a "final order" for purposes of a fees application due to the remand. See 25 Pa. Code § 1021.182(c) (fees application shall be filed "within 30 days of the date of a final order of the Board"). The Department says that resolving the application now would result in piecemeal decisions on any fee award. Ms. Williams, on this point, contends that our Adjudication is a final order for purposes of a fees application, that there is nothing preventing the Board from deciding the fees application now, and that, regardless of what happens on remand, Ms. Williams has already prevailed in her appeal by obtaining that remand. Although we find ourselves in general agreement with Ms. Williams that we could decide the fees application now, we think prudence dictates that, at this juncture, we hold the application in abeyance while the remand is proceeding.
Part of the rationale for delaying ruling on an application for attorney's fees where we have remanded the matter back to the Department is that our decision still has the potential to be reversed or affected by a future appeal to the Commonwealth Court. An appeal to the Commonwealth Court typically is not yet available where the Board has remanded a matter back to the Department for additional work. See Pa. R.A.P. 311(f) (appeals to the Court only taken where remand does not require the agency to exercise any discretion or where the issue decided would evade appellate review if immediate appeal not allowed); Sunoco Partners Mktg. & Terminals, L.P. v. Clean Air Council, 219 A.3d 280 (Pa. Cmwlth. 2019) (quashing appeal of Board Adjudication remanding a plan approval back to the Department for further evaluation); Sentinel Ridge Development, LLC v. Dept of Envtl Prot., 2 A.3d 1263, 1267 (Pa. Cmwlth. 2010) (quashing appeal of Board Adjudication remanding a stormwater permit because "it is not clear what will occur upon further evaluation by DEP. Thus, it is not clear what will happen with the permit, why it will happen, and which party, if any, will be aggrieved."). However, the issues that are litigated in an original appeal before the Board are generally preserved if there are subsequent proceedings following the remand that eventually make their way to the Commonwealth Court. See, e.g., Borough of St. Clair v. DEP, 2014 EHB 76 (remanding solid waste permit to the Department for further work on four issues); Borough of St. Clair v. DEP, 2017 EHB 299 (dismissing appeal of reissued permit following remand); Borough of St. Clair v. Dep't of Envtl. Prot., No. 1026 CD. 2016, 2017 Pa.Commw. Unpub. LEXIS 481 (Pa. Cmwlth. July 7, 2017) (addressing issues raised in both appeals and affirming the Board).
We have previously held that what is a "final order" for purposes of an appeal to the Commonwealth Court is not necessarily the same as what constitutes a "final order" for resolving a fees application. Crum Creek Neighbors v. DEP, 2010 EHB 67, 69-71.
Thus, for example, if the Department takes an action on remand and reissues the Estate's NPDES permit, Ms. Williams, or the Estate, may appeal the reissued permit to the Board. Any Adjudication in that appeal could then be appealed to the Commonwealth Court and include objections to our 2021 Adjudication as well. Therefore, it is conceivable that the Commonwealth Court could find that the Board's Adjudication remanding the Estate's NPDES permit back to the Department was wrongly decided, in whole or in part. That would, in turn, potentially affect the degree of success of Ms. Williams and the resultant amount of any award. See Gerhart v. DEP, 2020 EHB 1, 5-6 (listing factors to be considered in determining the amount of an award, including the applicant's degree of success and how the result of the appeal compares to the relief sought). Rather than facing a situation where awarded fees might need to be clawed back after they have already been paid, the more circumspect position is to defer a decision on the fees application for now.
Such considerations were in mind in Rausch Creek Land, LP v. DEP, 2017 EHB 1089, where we evaluated a motion to lift a previously imposed stay on appellant Rausch Creek's application for fees. In 2013, we issued an Adjudication suspending and remanding back to the Department a surface mining permit for further evaluation regarding the legal right to mine the site, the site's approximate original contour, and the appropriate erosion and sedimentation controls. Rausch Creek Land, LP v. DEP, 2013 EHB 587. Rausch Creek filed an application for costs and fees within 30 days of our Adjudication. Concurrently, both Rausch Creek and the permittee filed appeals of our Adjudication to the Commonwealth Court. The Court quashed both appeals because of the Board's remand to the Department. See Cmwlth. Ct. Nos. 2007 C.D. 2013 and 2015 C.D. 2013. Soon thereafter, the Department moved to stay proceedings related to the fees application, which we granted by way of an Order over Rausch Creek's opposition.
Despite succeeding in other aspects of its appeal, Rausch Creek disagreed with the baseline year for determining what constituted the site's approximate original contour.
In 2017, Rausch Creek filed an appeal of the renewed and reissued surface mining permit that followed from our remand. Rausch Creek then moved to lift the stay on the fees application in the earlier appeal, arguing that the new appeal was distinct and the fees application should be decided for the earlier appeal. We denied Rausch Creek's motion to lift the stay, reasoning that an Adjudication of the renewed and reissued permit, and any subsequent appellate proceedings, could conceivably impact the amount of an award to Rausch Creek:
Any appeal to Commonwealth Court that Rausch Creek files from our Adjudication in the 2017 appeal may include any objections (that, presumably, are not otherwise moot) that it continues to have with our 2013 Adjudication. We must assume that those earlier concerns are still very much alive, particularly given the objections in the 2017 notice of appeal, which incorporates the
objections in the 2011 appeal. Porter [the permittee] might be able to refile its earlier quashed appeal as well.
There is no rule or requirement that expressly prevents the Board from ruling upon an application for fees before the opportunity for all appeals has expired, but we have traditionally deferred ruling on an application pending the exhaustion of all appeals on the merits, for good reason. See, e.g., UMCO v. DEP, 2009 EHB 24. For example, if the Court were to overturn our ruling that was largely in Rausch Creek's favor in 2013, it is difficult to imagine that we would still award fees to Rausch Creek. In addition, fees incurred on appeal can be recoverable. See, e.g., Hatfield Twp. Mun. Auth. v. DEP, 2013 EHB 764.Rausch Creek, 2017 EHB 1089, 1091. Thus, our 2013 Rausch Creek Adjudication was not appealable to the Commonwealth Court at the time because it remanded the permit back to the Department, but those issues could have still been litigated at the appellate level in an appeal from our subsequent Adjudication in 2019. Rausch Creek Land, LP v. DEP, 2019 EHB 265, appeal withdrawn, No. 447 C.D. 2019. Accordingly, we recognized that a decision by the Commonwealth Court on those issues could have impacted Rausch Creek's degree of success, and therefore, the amount of any award, and we continued the stay of the 2013 fees application.
We exercised similar caution in Crum Creek Neighbors v. DEP, 2010 EHB 67. In Crum Creek, we had remanded an NPDES permit back to the Department so that the Department could evaluate discharges from a stormwater basin to an exceptional value stream under the antidegradation regulations and determine whether the stormwater controls of the residential development would diminish the flow of the stream. Crum Creek Neighbors v. DEP, 2009 EHB 548. Following our Adjudication's remand of the permit, the appellant, Crum Creek Neighbors, filed an application for fees and costs. We suspended our consideration of the application for two reasons: (1) because the permittee filed an appeal to the Commonwealth Court, and (2) because of our remand. With respect to the remand, we said:
We do not wish to foreclose the possibility that the Department's actions on remand may, at least arguably, prove to be relevant in determining the amount of fees to be awarded. To date, CCN [Crum Creek Neighbors] has achieved a
reexamination of the project. What happens next remains to be seen. Barring unreasonable delay on the part of the Department on remand, prudence suggests that we table CCN's petition for now.Crum Creek, 2010 EHB 67, 71 (emphasis in original). There is no pending appeal to the Commonwealth Court here (perhaps because the Department and the Estate are aware that such appeals are usually premature given the remand), but we think the remand on its own is enough to justify waiting.
Although we are electing at this time to stay the application, we are nevertheless mindful of timing concerns. Important work remains to be done on remand, but we do not want consideration of the fees application to languish and drag on too long. So far, nearly eight months have passed since we issued our Adjudication remanding the Estate's permit. We do not want years to go by before action is taken on it. In Crum Creek, three years passed on remand before the fees application was decided. When we finally decided it, we noted our dissatisfaction with the length of time that had passed: "We could have acted on the application at any time. Had we known that three years would go by, we might have done so." Crum Creek Neighbors v. DEP, 2013 EHB 395, 400. We think the Estate also likely has an interest in seeing the work on remand completed expeditiously so it can potentially move forward on its project.
We are also cognizant of the fact that counsel for Ms. Williams has taken this case pro bono and litigated it through motions practice, hearing, and adjudication. We do not know whether her counsel will continue representation through the remand and whatever may follow. Fee-shifting provisions help encourage attorneys to represent indigent clients and act as private attorneys general in advancing the policies enshrined in legislation. Lipton v. DEP, 2008 EHB 691, 699 (quoting Prandini v. Nat'l Tea Co., 585 F.2d 47, 53 (3d Cir. 1978)). Prolonged delays in the recovery of fees could arguably discourage able counsel from taking pro bono appeals before the Board.
In its memorandum of law, the Department correctly notes that by way of remand we have retained jurisdiction over this matter. In making this point, the Department cites Dauphin Meadows, Inc. v. DEP, 2001 EHB 116, where we denied a Departmental motion to relinquish jurisdiction in a case where we previously remanded a solid waste permit denial back to the Department in Dauphin Meadows, Inc. v. DEP, 2000 EHB 521. Interestingly, we expressed some concern in Dauphin Meadows, 2001 EHB 116, over the Department's handling of the remand: "The Department was given an opportunity to act and the question now is whether it has forfeited that opportunity entirely." 2001 EHB at 126. Accordingly, in light of the competing interests at play, and our own independent interest in "secur[ing] the just, speedy and inexpensive determination of every appeal," 25 Pa. Code § 1021.4, we will exercise our jurisdiction to continue to monitor the progress on remand and require periodic status reports. In addition, Ms. Williams may file a motion to lift the stay of the fees application and proceed with deciding it if appropriate circumstances warrant-for instance, if there is a substantial delay in the Department taking action on remand.
We issue the Order that follows.
ORDER
AND NOW, this 11th day of May, 2022, it is hereby ordered as follows:
1. Consideration of the Appellant's application for costs and fees is stayed pending further order of the Board.
2. The Appellant may move to lift the stay if circumstances warrant consistent with the foregoing Opinion.
3. The parties shall inform the Board within 7 days of any action being taken on NPDES Permit No. PAD150046.
4. If action on the permit has not been taken beforehand, the Department shall file a status report on or before September 30, 2022 with information regarding the status of its work on remand.
BERNARD A. LABUSKES, JR. Judge, STEVEN C. BECKMAN Judge
DISSENTING OPINION OF CHIEF JUDGE AND CHAIRMAN THOMAS W. RENWAND
Thomas W. Renwand, Chief Judge and Chairman
The majority acknowledges that we can decide the Appellant's fee petition at this time, and I would do so. There is no dispute that the Board has issued a final order and that the Appellant has filed a timely petition. An Adjudication that remands a permit back to the Department for further analysis is no less a final order for purposes of a fee application than an Adjudication that does not require remand. Crum Creek Neighbors v. DEP, 2013 EHB 835, 839 and 2013 EHB 395, 400.
Although I agree with the majority that it is within the Board's discretion when to rule on a fee petition after a final order, in this case I believe we should exercise our discretion and rule on the petition at this time. The Appellant should not have to wait for a ruling on her timely filed petition while the Department performs work that the Board has determined should have been done prior to issuing the permit and that could potentially take years to complete. For example, in Crum Creek Neighbors v. DEP, 2010 EHB 67, the Board suspended and deferred ruling on a petition for attorney's fees following the issuance of an Adjudication that remanded a permit back to the Department for further fact-finding. Three years later, the fee petition was still pending. Finally, on June 10, 2013, following the Department's renewal and modification of the permit, the appellant filed a motion to reopen consideration of its fee petition. EHB Docket No. 2007-287-L, Docket Entry No. 90. The motion to reopen the fee petition was granted, over the Department's opposition. Crum Creek, 2013 EHB 395. In reopening the matter, the Board noted that the fee petition could have been decided at the time it was filed and expressed concern over the three-year delay:
Additionally, in Crum Creek, unlike here, the permittee filed an appeal with the Commonwealth Court.
Our Adjudication was clearly a final order. CCN [Crum Creek Neighbors] was obligated to file its application within 30 days of that order. 25 Pa. Code [§] 1021.172. We could have acted on the application at any time. Had we known that three years would go by, we might have done so.Id. at 400.
My greater concern is that the parties may end up waiting years for a ruling that never comes. For example, in Rausch Creek Land, L.P. v. DEP, a fee application filed in 2013 was stayed following remand of a permit to the Department and appeal of the Board's Adjudication to the Commonwealth Court. EHB Docket No. 2011-137-L, Docket Entry No. 84 (Order issued on December 24, 2013). The fee petition was not addressed by the Board and was not resolved until December 2019 by means of a settlement reached between the appellant and the Department. Id. at Docket Entry No. 100.
In the cases cited above, the appellants' counsel were diligent and persistent in ensuring that their fee petitions were ultimately addressed, either by the Board or through the efforts of the parties. In the case of Crum Creek, the petition was addressed over the objection of the Department, who argued that there could be a future application to further amend the permit.
Had we adopted the argument that the fee petition should be held in abeyance in the event of some future action, it might still be pending before the Board.
The majority recognizes the problem of delay and, to that end, has ordered periodic status reports. The majority also holds that the Appellant may move to lift the stay if circumstances warrant, including "a substantial delay in the Department taking action on remand." At a minimum, I would order the Department to complete the remand review and analysis by a date certain. If the work is not completed by that date, I would lift the stay and decide the fee petition. We stated in Crum Creek, 2010 EHB at 71, that "[t]he duty to file a fee application should be tied to a clear action of the Board, not some unknown, undefined, possible future action of some other party." Likewise, I believe that the timeframe for ruling on a fee application should not be tied to some unknown, undefined, possible future action of one of the parties.
I disagree with the majority's reasoning that a decision on the fee petition should be delayed because an appeal of the Department's action on remand could result in the Board having to walk back fees that may be awarded. The majority expresses concern that the Board's decision "still has the potential to be reversed or affected by a future appeal to the Commonwealth Court." If the Department's action on remand is appealed, by either the Appellant or the Permittee, the appeal will be from a new action of the Department and any appeal to the Commonwealth Court will be from the Board's decision on that action. Foregoing a decision on the fee application at this time in the event of a possible appeal of a Board decision on some future action of the Department that might include an attack on the Board's remand order seems speculative and unnecessary.
The parties have set forth their arguments regarding the awarding of fees, and this issue is ready for decision by the Board. I do not believe a delay serves the interests of the parties or the Board. If the Appellant is entitled to fees, she deserves a timely ruling on her application, not a promise to decide at some indefinite point in the future.