IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
Department of Environmental :
Protection, :
:
Petitioner :
:
v. : No. 107 C.D. 2020
: Submitted: October 15, 2020
Stephen and Ellen Gerhart and :
Sunoco Pipeline, L.P., :
:
Respondents :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge1
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: February 16, 2021
The Commonwealth of Pennsylvania, Department of Environmental
Protection (DEP) petitions for review of the order of the Environmental Hearing
Board (EHB) ordering DEP to pay Stephen and Ellen Gerhart (Landowners)
$13,135.77 in costs and attorney’s fees pursuant to Section 307(b) of The Clean
Streams Law.2 We affirm.
1
This case was assigned to the opinion writer prior to January 4, 2021, when Judge
Brobson became President Judge.
2
Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §691.307(b). Section 307(b)
states, in relevant part: “[EHB], upon the request of any party, may in its discretion order the
(Footnote continued on next page…)
On February 13, 2017, DEP granted two permits to Sunoco Pipeline,
L.P. (Sunoco), authorizing the installation of natural gas liquids pipelines across
Landowners’ property in Union Township, Huntingdon County.3 EHB 1/27/20
(continued…)
payment of costs and attorney’s fees it determines to have been reasonably incurred by such
party in proceedings pursuant to [The Clean Streams Law].”
3
One of the permits, relating to erosion and sediment control, is referred to as a “Chapter
102” permit, which was issued under the provisions of Chapter 102 of DEP’s regulations, 25
Pa. Code §§102.1-102.51. See, e.g., Becker v. Department of Environmental Protection (Pa.
Cmwlth., No. 560 C.D. 2017, filed December 1, 2017), slip op. at 15 (“Under The Clean Streams
Law and its regulations promulgated at Chapter 102 of Title 25 of the Pennsylvania Code, [DEP]
has the authority to issue orders to prevent the pollution of waters of the Commonwealth, which
are defined very broadly to include . . . ‘any and all rivers, streams . . . or parts thereof.’ Section
1 of The Clean Streams Law, 35 P.S. §691.1[.]”); Delaware County Community College v. Fox,
342 A.2d 468, 479-80 (Pa. Cmwlth. 1975) (holding that DEP’s regulations in Chapter 102 of the
Pennsylvania Code, relating to erosion and sedimentation control, provide protection against
secondary polluting effects should they become imminent).
The other permit, relating to water obstruction and encroachment, is referred to as a
“Chapter 105” permit, was issued under the provisions of Chapter 105 of DEP’s regulations, 25
Pa. Code §§105.1-105.64. As we have previously explained:
The [Dam Safety and Encroachments Act (DSEA), Act of
November 26, 1978, P.L. 1375, as amended, 32 P.S. §§693.1-
693.27], similar to The Clean Streams Law, provides [DEP’s]
statutory authority for Chapter 105 regulations governing water
obstructions and encroachments, the scope of which is broadly
delineated to include “[a]ll water obstructions and encroachments
. . . located in, along, across or projecting into any watercourse,
floodway or body of water, whether temporary or permanent.”
Section 4 of the DSEA, 32 P.S. §693.4 (emphasis added).
Becker, slip op. at 16. See also Section 105.15(b) of DEP’s regulations, 25 Pa. Code §105.15(b)
(“For structures or activities where water quality certification is required under section 401 of the
Clean Water Act (33 U.S.C.A. §1341), an applicant . . . shall prepare and submit to [DEP] for
review, an environmental assessment containing the information required by subsection (a) for
every dam, water obstruction or encroachment located in, along, across or projecting into the
(Footnote continued on next page…)
2
Opinion (EHB Op.) at 1. On February 23, 2017, Landowners appealed DEP’s
issuance of the two permits. By a September 25, 2019 Adjudication and Order,
EHB sustained Landowners’ appeal of the permits in part. Id. EHB held that a
wetland on the property denominated as Wetland L24/25 was a palustrine forested
(PFO) wetland, which had been improperly classified as a palustrine emergent
(PEM) wetland,4 and that DEP erred in approving Sunoco’s restoration plan that
was based on the flawed classification.5 Id. at 1-2.6
(continued…)
regulated water of this Commonwealth.”); Solebury Township v. Department of Environmental
Protection, 928 A.2d 990, 999 (Pa. 2007) (“[W]e conclude that, at least under the circumstances
presented in this case, challenges to The Clean Streams Law aspects of the issuance of Section
401 Certifications are ‘proceedings pursuant to this act’ for purposes of the fee-shifting
provisions of Section 307 [of The Clean Streams Law].”).
4
Section 105.451(b) of DEP’s regulations states that “[t]he use of some delineation
method is necessary in order to administer, implement, enforce and determine compliance with
. . . The Clean Streams Law[.]” 25 Pa. Code §105.451(b). Accordingly, Section 105.451(c)
provides, in relevant part:
[DEP] adopts and incorporates by reference the 1987 Corps of
Engineers Wetland Delineation Manual (Technical Report Y-87-1)
along with the guidance provided by the United States Army
Corps of Engineers, Major General Arthur E. Williams’
memorandum dated 6 March 1992, Clarification and
Interpretation of the 1987 Manual and any subsequent changes as
the methodology to be used for identifying and delineating
wetlands in this Commonwealth.
25 Pa. Code §105.451(c).
In turn, a federal appellate court has explained:
[T]he [environmental assessment (EA)] clearly explains that the
“field delineations of wetlands” in Pennsylvania were performed
according to the U.S. Army Corps of Engineers’ “Wetlands
(Footnote continued on next page…)
3
(continued…)
Delineation Manual (COE, 1987),” JA 202, and that delineated
wetlands “were classified as described in Cowardin, et al.,
(1979),” JA 203. The EA thus classifies the wetlands as either
Palustrine Forested, Palustrine Scrub-Shrub, or Palustrine
Emergent wetlands. These three Palustrine wetland types are
consistent with the Cowardin classification system referenced in
the Corps’ delineation manual. See U.S. ARMY CORPS OF
ENG’RS, WETLANDS DELINEATION MANUAL 3 (1987);
LEWIS M. COWARDIN, ET AL., CLASSIFICATION OF
WETLANDS AND DEEPWATER HABITATS OF THE
UNITED STATES 10-13 (1979).
Delaware Riverkeeper Network v. Federal Energy Regulatory Commission, 857 F.3d 388, 400
(D.C. Cir. 2017). See also Section 102.14(c)(2) of DEP’s regulations, 25 Pa. Code §102.14(c)(2)
(providing that “[w]etlands located in the riparian buffer shall be protected and maintained
consistent with Chapter 105 (relating to dam safety and waterway management));” Section
105.17 of DEP’s regulations, 25 Pa. Code §105.17 (denominating wetlands as either
“Exceptional value wetlands” or “Other wetlands,” based on the criteria outlined therein).
5
Additionally, Landowners also asserted as error that “not all of the wetlands on their
property were properly delineated,” and that “Sunoco and [DEP] failed to identify all of the
streams on [their] property, and therefore, [DEP] failed to require sufficient streamside buffer
restoration.” EHB Op. at 2. However, EHB noted that “[t]hose two issues played a relatively
small part in the case.” Id.
6
With respect to the error in classification, EHB explained:
The pipeline crossed Wetland L24/25 at two places. The portion of
the wetland located within the pipeline’s permanent right of way
totaled 0.066 acres. There was never any question that the wetland
would be restored. Rather, the issue was what vegetation was to be
planted during restoration, which depended upon how the wetland
was classified before being impacted by the installation of the
pipeline. [Landowners] argued that there were two overlapping
bases for classifying the wetland as a PFO wetland. First, they
argued that there were enough trees in the wetland to satisfy the
definition of a PFO wetland. Second, they argued that a wetland
can be classified as “forested” by way of overhanging tree cover
(Footnote continued on next page…)
4
Landowners then filed an application for costs and attorney’s fees
from DEP and Sunoco. Landowners sought $265,976.27, comprised of $50,000.00
in attorney’s fees and costs, and the remainder in expert fees. EHB Op. at 3.
EHB explained that, with respect to Sunoco’s liability, “a permittee
such as Sunoco in a third-party appeal will ordinarily not be required to reimburse
third-party appellants such as [Landowners] for fees and costs unless the permittee
engaged in dilatory, obdurate, vexatious, or bad faith conduct.” EHB Op. at 3-4.7
(continued…)
originating from trees growing outside the delineated boundaries of
the wetland. [DEP] and Sunoco disputed both points.
We accepted [Landowners’] argument that Wetland L24/25
should have been classified as a PFO wetland. We found that there
had been hydrophytic trees of sufficient size and amount to provide
at least 30-percent areal cover rooted in and growing out of the
wetland within its delineated boundaries before Sunoco clear-cut
the pipeline corridor, thereby satisfying the definition of a PFO
wetland. We held that [Landowners] carried their burden of
proving that [DEP] erred by approving a defective restoration plan
for the wetland and we ordered that the wetland be restored as a
PFO wetland. As to [Landowners’] overhanging branches theory,
we found that the issue was “somewhat of a distraction from the
more basic issue of whether there were in fact trees growing within
the boundaries of Wetland L24/25 on [Landowners’] property.”
([EHB 9/25/19 Opinion at] 19.) We did not address the
overhanging branches theory any further.
EHB Op. at 2-3 (emphasis in original and footnote omitted).
7
As the Pennsylvania Supreme Court has explained:
Where, as here, the record supports a tribunal’s finding of fact that
the conduct of the party was dilatory, obdurate, vexatious, or in
bad faith, this Court will not disturb an award of counsel fees in the
absence of an abuse of discretion. Township of South Strabane v.
(Footnote continued on next page…)
5
EHB found that Landowners “have not alleged that Sunoco engaged in any such
conduct,” and although DEP asserted “errors” in Sunoco’s wetland data sheets,
“[i]t also has not alleged that Sunoco has engaged in fraud or gross negligence in
the preparation of its permit application.” Id. at 4. EHB concluded that it
“detected nothing approaching bad faith on the part of Sunoco in either its permit
application or its litigation of this case.” Id. As a result, EHB held that “Sunoco is
not liable for reimbursing [Landowners] for any of their fees or costs.” Id.
With respect to DEP’s liability, EHB applied the “catalyst test,[8]”
examining whether: the applicant for fees and costs was the prevailing party;
(continued…)
Piecknick, [686 A.2d 1297 (Pa. 1996) (a]warding counsel fees
appropriate if record supports finding of fact that the conduct of
the party was dilatory, obdurate, or vexatious). We find no abuse
of discretion in this instance and an award of counsel fees is
appropriate. We do not reach this decision lightly for, as Lucchino
reminds us, any grant of attorney’s fees against an individual
litigant in a suit against his government, has a potential “chilling
effect” on the willingness of the ordinary citizen to pursue
resolution of his disputes in the courts. However, recognizing that
we must strike a delicate balance, it is equally important that this
phrase not be employed to defeat the protections against frivolous
suits afforded to a defendant.
Lucchino v. Department of Environmental Protection, 809 A.2d 264, 270 (Pa. 2002) (footnotes
omitted).
8
As this Court has stated:
Under the catalyst test, the applicant must demonstrate the
following to be considered eligible for an award under Section
307(b) of The Clean Streams Law:
(1) that the opposing party provided some of the
benefits that the fee-requesting party sought in the
(Footnote continued on next page…)
6
achieved some degree of success on the merits; and made a substantial contribution
to the determination of the issues. EHB Op. at 5 (citing Kwalwasser v. Department
of Environmental Resources, 1988 EHB 1308 (December 22, 1988), 1988 WL
161059, aff’d, 569 A.2d 422, 424 (Pa. Cmwlth. 1990)). EHB held:
Having concluded that [Landowners’] appeal was
a proceeding pursuant to The Clean Streams Law, our
next inquiry is whether [Landowners] have satisfied the
threshold criteria for an award. Actually, neither [DEP]
nor Sunoco dispute that [Landowners] meet these
threshold criteria. [Landowners] obviously obtained a
final order—the [EHB 9/25/19] Adjudication and Order.
They prevailed on their claim that the wetlands on their
property were improperly classified as PEM wetlands
instead of PFO wetlands, and that the site needs to be
restored accordingly. They achieved this success on the
merits, and their efforts were the exclusive contribution
leading to this result. The threshold criteria have been
met.
EHB Op. at 8. As a result, EHB assessed $13,135.77 in costs and attorney’s fees9
against DEP. DEP then filed the instant petition for review.10
(continued…)
underlying suit, (2) that the suit stated a genuine
claim, and (3) that the suit was a substantial or
significant reason why the opposing party,
voluntarily or otherwise, provided the benefit or
partial benefit that the fee-requesting party sought
in the underlying suit.
Sierra Club v. Department of Environmental Protection, 211 A.3d 919, 922 (Pa. Cmwlth. 2019)
(citations omitted).
9
DEP does not contest EHB’s calculation of the costs and attorney’s fees awarded.
10
As this Court has explained:
(Footnote continued on next page…)
7
As stated by DEP: “This appeal raises a narrow issue, i.e., what is the
proper standard to apply when considering whether a permittee should be liable for
attorney’s fees and costs in a third-party appeal under Section 307(b) of The Clean
Streams Law, 35 P.S. §691.307(b)?” Brief of Petitioner at 15. DEP contends that
EHB erred in applying the “bad faith” standard to Sunoco, while applying the
“catalyst test” in determining DEP’s liability. DEP also notes that this identical
issue was considered by this Court in Clean Air Council v. Department of
Environmental Protection, ___ A.3d ___ (Pa. Cmwlth., Nos. 309 C.D. 2019, 313
C.D. 2019, filed February 16, 2021) (Clean Air Council). Id. We agree with DEP
that our disposition of this issue in Clean Air Council controls the disposition of
this appeal.11
(continued…)
Our review of EHB determinations under Section 307(b) of
The Clean Streams Law is limited to determining whether the
EHB abused its discretion. Solebury Township[, 928 A.2d at 997
n.8]. In Kwalwasser[, 569 A.2d at 424], we noted that our
disagreement with the EHB’s reasoning or result is not sufficient
ground to overturn the EHB’s decision. We may not substitute our
judgment for that of the EHB. [Id.] Rather, “[a]n abuse of
discretion occurs if, in reaching a conclusion, the law is overridden
or misapplied or the judgment exercised is manifestly
unreasonable or is the result of partiality, prejudice, bias, or ill
will.” Luzerne County Children & Youth Services v. Department
of Human Services, 203 A.3d 396, 398 (Pa. Cmwlth. 2019).
Sierra Club, 211 A.3d at 924-25. Importantly, “[t]his broad discretion includes the authority to
adopt standards by which the EHB will evaluate applications for costs and fees.” Id. at 926
(citing Solebury Township, 928 A.2d at 1004).
11
Landowners’ outstanding Application for Relief Regarding Payment is denied. See,
e.g., Pa. R.A.P. 1736(a)(1), (b) (“No security shall be required of . . . [t]he Commonwealth or
any officer thereof, acting in his official capacity. . . . Unless otherwise ordered . . . the taking of
(Footnote continued on next page…)
8
Accordingly, we affirm EHB’s order on the basis of our opinion in
Clean Air Council.
MICHAEL H. WOJCIK, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
(continued…)
an appeal by any party . . . shall operate as a supersedeas in favor of such party, which
supersedeas shall continue through any proceedings in the United States Supreme Court.”).
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
Department of Environmental :
Protection, :
:
Petitioner :
:
v. : No. 107 C.D. 2020
:
Stephen and Ellen Gerhart and :
Sunoco Pipeline, L.P., :
:
Respondents :
ORDER
AND NOW, this 16th day of February, 2021, the order of the
Environmental Hearing Board dated January 7, 2020, is AFFIRMED.
Respondents Stephen and Ellen Gerhart’s Application for Relief Regarding
Payment is DENIED.
__________________________________
MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, :
Department of Environmental :
Protection, :
Petitioner :
:
v. : No. 107 C.D. 2020
: Submitted: October 15, 2020
Stephen and Ellen Gerhart and :
Sunoco Pipeline, L.P., :
Respondents :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
CONCURRING OPINION
BY JUDGE BROBSON FILED: February 16, 2021
I concur for the reasons set forth in my concurring opinion filed in Clean Air
Council v. Department of Environmental Protection, ___ A.3d ___ (Pa. Cmwlth.,
Nos. 309 C.D. 2019, 313 C.D. 2019, filed February 16, 2021).
P. KEVIN BROBSON, Judge