          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Sierra Club,                                   :
                              Petitioner       :
                                               :
               v.                              :    No. 563 C.D. 2018
                                               :    Argued: February 12, 2019
Department of Environmental                    :
Protection,                                    :
                       Respondent              :


BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
        HONORABLE ROBERT SIMPSON, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE MICHAEL H. WOJCIK, Judge
        HONORABLE CHRISTINE FIZZANO CANNON, Judge
        HONORABLE ELLEN CEISLER, Judge


OPINION BY JUDGE BROBSON                            FILED: June 11, 2019


               In this appeal from a decision by the Pennsylvania Environmental
Hearing Board (EHB), Petitioner the Sierra Club contends that the EHB erred when
it denied the Sierra Club’s Application for Fees and Costs (Fee Application) from
the Pennsylvania Department of Environmental Protection (Department) under
Section 307(b) of The Clean Streams Law.1 Generally, the Sierra Club complains
that the EHB took a far too narrow approach at applying precedent from the
Pennsylvania Supreme Court and this Court analyzing and applying the fee/cost
shifting provision of The Clean Streams Law. For the reasons set forth below, we



      1
          Act of June 22, 1937, P.L. 1987, as amended, 35 P.S.§ 691.307(b).
reject the Sierra Club’s arguments and affirm the EHB’s exercise of discretion in
this matter.
               According to the uncontested findings of the EHB, Lackawanna Energy
Center, LLC (LEC) set out to construct a natural gas-fired power plant in the
Borough of Jessup, Lackawanna County. As part of that process, LEC applied to
the Department for permits relating to industrial wastewater discharge associated
with the planned power plant.
               The Department issued LEC a National Pollutant Discharge
Elimination System (NPDES) permit on March 2, 2016, authorizing LEC to
discharge not more than 290,000 gallons per day (gpd) of industrial waste from the
proposed plant into Grassy Island Creek. The Department classifies Grassy Island
Creek for purposes of aquatic life use as Cold Water Fishes (CWF) and Migratory
Fishes (MF). The approved point of discharge was 1.1 miles upstream from the
confluence of Grassy Island Creek and the Lackawanna River, which is also
classified as CWF and MF. At the point of confluence with Grassy Island Creek the
Lackawanna River also enjoys the High Quality (HQ) water quality designation. HQ
waters are “[s]urface waters having quality which exceeds levels necessary to
support propagation of fish, shellfish, and wildlife and recreation in and on the
water.” 25 Pa. Code §§ 93.1 (definitions), 93.4b(a).2
               On March 6, 2016, and after receiving the NPDES permit, LEC applied
to the Department for a water quality management (WQM) permit. The WQM
permit works in tandem with the NPDES permit, as it represents to the Department
how the applicant proposes to construct its treatment facility, pursuant to Department

       2
           HQ waters and Exceptional Value (EV) waters of the Commonwealth are afforded
special protection under the state’s environmental laws. Of the two, EV waters are afforded greater
protection. See 25 Pa. Code §§ 93.4a(c), (d).

                                                2
standards, to ensure compliance with the effluent limits set in the NPDES permit.
The Department issued a WQM permit to LEC on May 24, 2016.
               The Sierra Club lodged separate appeals with the EHB, challenging first
the issuance of the NPDES permit and then the issuance of the WQM permit. The
EHB consolidated the appeals at the request of the parties on September 1, 2016.
The gist of the Sierra Club’s challenges to both permits was that the Department
failed to require LEC, as part of the permitting process, to “evaluate nondischarge
alternatives to the proposed discharge and use an alternative that is environmentally
sound and cost[ ]effective when compared with the cost of the proposed discharge.”
Id. § 93.4c(b)(1)(i)(A).           Assuming LEC demonstrated the absence of
environmentally sound and cost-effective nondischarge alternatives, the Sierra Club
maintained that the Department failed to require LEC, as part of the permitting
process, to “demonstrate that the discharge will maintain and protect the existing
quality of receiving surface waters.” Id. § 93.4c(b)(1)(i)(B).
               It is undisputed that the Department requested LEC to conduct an
antidegradation analysis as part of the permitting process. The Sierra Club, however,
challenged not the absence of an analysis, but the adequacy/sufficiency of the
analysis that LEC submitted to the Department in support of its permit applications.
As for the Department, the Sierra Club maintained that the Department failed to
apply to its review of LEC’s submissions the level of rigor required under the law.
Because of these failures, the Sierra Club maintained that issuance of the permits
violated The Clean Streams Law3 and Article I, Section 27 of the Pennsylvania
Constitution, known as the Environmental Rights Amendment.



      3
          Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§ 691.1-.1001.

                                               3
             In April 2017, while the Sierra Club’s consolidated appeals were
pending before the EHB, LEC sought to amend its NPDES permit to eliminate the
discharge of industrial wastewater from the planned power plant into Grassy Island
Creek. (Reproduced Record (R.R.) 799a-801a.) According to the application to
amend, LEC decided to employ alternative technology at the plant, thereby reducing
the amount of industrial wastewater generated to a level that could be transported
from the facility by truck for offsite treatment. LEC asked that its NPDES permit
be amended to eliminate industrial wastewater discharge, leaving only the permitted
discharge of industrial stormwater, which the Sierra Club did not challenge.
The Department approved the amendment on April 17, 2017. With that approval,
and because LEC no longer planned to treat onsite industrial wastewater for
discharge into Grassy Island Creek, on April 25, 2017, LEC requested that the
Department terminate the WQM permit.            By letter dated April 27, 2017, the
Department informed LEC that the termination would become effective
within 30 days of the date of the letter.
             In light of the NPDES permit modification and the WQM permit
termination, the Sierra Club, LEC, and the Department jointly petitioned the EHB
on June 15, 2017, to issue a final order dismissing the Sierra Club’s consolidated
appeals as moot and requesting that the EHB retain jurisdiction only for purposes of
entertaining a timely application for costs and fees by the Sierra Club.           On
June 16, 2017, the EHB granted the petition, dismissed the consolidated appeals as
moot, and gave the Sierra Club until July 17, 2017, to file its application for costs
and fees.
             In its Fee Application, the Sierra Club maintained that it was entitled to
fees and costs under Section 307(b) of The Clean Streams Law, which provides, in


                                            4
relevant part: “The [EHB], 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.” Both LEC and the
Department opposed the Fee Application, even though the Sierra Club only sought
an award against the Department. The EHB conducted an evidentiary hearing on
the Fee Application on November 15, 2017, where all of the parties had the
opportunity to submit evidence in support of and in opposition to the Fee
Application. The EHB also accepted post-hearing briefs from the parties.
                In an Opinion and Order issued March 28, 2018 (EHB Opinion), the
EHB denied the Fee Application.4 In so doing, the EHB first set forth its three-prong
analysis in deciding fee/cost applications under Section 307(b) of The Clean Streams
Law.       First, the EHB asks whether the applicant incurred the fees/costs in a
proceeding pursuant to The Clean Streams Law. If so, the EHB next determines
whether the applicant satisfies “threshold criteria” for the award. If both the first
and second prong are satisfied, the EHB proceeds to determine the appropriate
amount of the award. (EHB Opinion at 5.)
                Bypassing the first prong of its analysis, the EHB noted that the
“threshold criteria” for the award under the second prong will vary, depending on
whether the applicant obtained a final ruling from the EHB on the merits. Because
the Sierra Club did not secure a final ruling on the merits of its appeals, the EHB
applied the catalyst test. 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 underlying suit,
       4
           Chief Judge and Chairman Thomas W. Renwand issued a separate dissenting opinion.

                                               5
            (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.
Lower Salford Twp. Auth. v. Dep’t of Envtl. Prot., 67 A.3d 50, 52 (Pa.
Cmwlth. 2013); see Upper Gwynedd Towamencin Mun. Auth. v. Dep’t of Envtl.
Prot., 9 A.3d 255, 265 (Pa. Cmwlth. 2010), appeal denied, 23 A.3d 1058 (Pa. 2011).
            Assessing whether the Sierra Club satisfied the catalyst test, the EHB
focused on the third proof element and concluded that the Sierra Club failed to
establish that its consolidated appeals were a substantial or significant cause of
LEC’s decision to eliminate from its planned facility any discharge of industrial
wastewater into Grassy Island Creek. The EHB reasoned:
            In essence, Sierra Club’s argument is that, because it filed
            an appeal and because LEC later made changes to its
            facility that eliminated the discharge Sierra Club
            challenged, the appeal must have been a cause, if not the
            only cause, of LEC’s decision. Sierra Club has not
            provided any evidence other than the relative timing of the
            events to show that LEC made changes to its facility as a
            result of Sierra Club’s appeal, either in whole or in part.
                   Although the relative timing of events can support
            a finding of causation, it is rarely enough by itself. A
            well[-]executed rain dance is unlikely to be the cause of
            subsequent rainfall. In the absence of any other reasonable
            explanation, a showing of temporal alignment might have
            been entitled to more weight, but here, in contrast to Sierra
            Club’s limited showing, LEC presented the
            uncontradicted testimony of Daniel Ewan, Vice President
            of Thermal Development at Invenergy LLC, a company of
            which LEC is an affiliate. Mr. Ewan led the team of
            engineers and developers responsible for the development
            of the LEC facility in Jessup, and he reviewed and
            approved the NPDES and WQM permit applications. Mr.
            Ewan credibly testified that the reason that LEC
            redesigned its facility to eliminate the discharge was for

                                         6
purely economic and business reasons, and it was not
prompted by Sierra Club’s appeals.
        He testified that LEC’s team of consultants were
[sic] engaged in a continual process of trying to reduce the
amount of wastewater generated from the facility. Early
on in that process, LEC had changed the design of its
facility from being water-cooled to air-cooled, which
reduced the volume of wastewater from more than a
million gallons per day [(gpd)] to 290,000 gpd. That
volume of wastewater was still too much to be trucked off
site or conveyed to a sewer system. Once in possession of
the preliminary effluent limitations in the draft NPDES
permit, LEC could perform a detailed engineering analysis
and determine what equipment was needed to meet the
limits. Mr. Ewan testified that, when the final effluent
limitations were issued, they were more stringent than
LEC anticipated and more equipment needed to be added
at a significantly higher cost in order to meet the final
limits. Therefore, LEC asked its engineers to look for
ways to bring down the cost of the operation by
reevaluating processes, looking at new technology, and
assessing ways to handle the wastewater differently. LEC
identified additional opportunities for wastewater
reduction that made other disposal options, such as
trucking and using an existing sewer system, more
economically and technically feasible.
        We have no reason to doubt Mr. Ewan’s testimony
that LEC was engaged in an ongoing process to try to bring
down its costs, and that it was this ongoing process that led
to the elimination of the discharge to Grassy Island Creek.
He said that capital costs were evaluated throughout the
permit application process, including costs associated with
wastewater. The reduction in wastewater that LEC was
ultimately able to achieve will save approximately
$3 million in capital costs.
        ....
        . . . Ultimately, in the face of credible testimony to
the contrary, Sierra Club never shows that LEC was
motivated in any part by Sierra Club’s appeal, or the
objections pursued by Sierra Club over the course of the


                              7
             litigation, to make the design changes that eliminated the
             need for a discharge.
(EHB Opinion at 6-9 (emphasis in original) (record references omitted).)
Concluding that the Sierra Club did not meet its burden of proof under the third
element of the catalyst test, the EHB denied the Fee Application without any
additional analysis.
             The Sierra Club filed a timely petition for review, challenging the
EHB’s denial of its Fee Application. In its brief, the Sierra Club identifies four
separate questions involved in this appeal.        The first asks whether the EHB
committed an error of law or abused its discretion in taking an “overly restrictive”
approach to applying the catalyst test. The second asks whether the EHB committed
an error of law or abused its discretion in concluding that the Sierra Club failed to
meet its burden of proof with respect to the third element of the catalyst test. Similar
to the second question, the third question asks whether the EHB’s factual finding(s)
with respect to why LEC redesigned its facility to eliminate wastewater discharge
into Grassy Island Creek was against the weight of substantial evidence introduced
at the hearing on the Fee Application. Finally, but similar to the first question, the
fourth question asks whether the EHB erred as a matter of law or abused its
discretion by using an “overly strict application” of the catalyst test and the standards
set forth in Kwalwasser v. Department of Environmental Resources, 569 A.2d 422
(Pa. Cmwlth. 1990), where the EHB is entitled to broad discretion in ruling on fee
applications under Section 307(b) of The Clean Streams Law.
             Notwithstanding the separate identification of these four questions
earlier in its brief, much of the Sierra Club’s argument in its principal and reply
briefs focuses on the underlying merits of its appeals from the Department’s
permitting decisions.     Specifically, the Sierra Club argues strongly that the

                                           8
Department erred in awarding the NPDES and WQM permits without requiring LEC
to evaluate thoroughly nondischarge alternatives that would be more cost effective
than the proposed discharge into Grassy Island Creek. Had the Department required
LEC to engage in this analysis as part of the application process, the Sierra Club
contends that LEC would have reached the same conclusions that it ultimately
reached during the permit appeals—i.e., that available nondischarge alternatives to
the proposed discharge were achievable and cost effective for LEC.
             We emphasize, however, that the EHB did not engage in a fulsome
analysis of the merits of the Sierra Club’s Fee Application. In particular, the EHB
did not engage in any analysis of whether LEC’s decision to seek modification of
the terms of its NPDES permit and termination of its WQM permit and/or the
Department’s favorable action on those requests provided any of the benefits, or
relief, that the Sierra Club sought to achieve through its appeals. Rather, the EHB
denied the Fee Application on a single ground, that being that the Sierra Club failed
to meet its burden of proof under the third element of the catalyst test. We will,
therefore, confine our review to the issues and arguments of the Sierra Club in
support of reversal addressed to that determination.
             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 Twp. v. Dep’t of Envtl. Prot., 928 A.2d 990, 997 n.8 (Pa. 2007) (Solebury
I). In Kwalwasser, 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. Kwalwasser, 569 A.2d at 424. 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


                                         9
partiality, prejudice, bias, or ill will.” Luzerne Cty. Children & Youth Servs. v. Dep’t
of Human Servs., 203 A.3d 396, 398 (Pa. Cmwlth. 2019).
               In light of the foregoing, we first consider the question of whether the
EHB overrode or misapplied the law by employing what the Sierra Club considers
to be an “overly restrictive” approach to Section 307(b) fee/cost applications.
The Sierra Club does not take issue with the EHB’s use of the catalyst test.5 Rather,
with respect to the third element of the test, which the EHB refers to in its decision
as the “causation requirement,” the Sierra Club is critical of the burden of proof that
the EHB is placing on applicants to satisfy that proof element. Essentially, the Sierra
Club contends that the EHB required the Sierra Club in this case to prove
affirmatively that LEC’s “true motive” in requesting the changes to its permits,
which effectively afforded the Sierra Club the relief it sought in the consolidated
appeals, was to avoid further litigation before the EHB by mooting the consolidated
appeals. This, the Sierra Club argues, places an unfair, expensive, and onerous
burden on applicants.          The Sierra Club also contends that this approach is
inconsistent with the EHB’s decision in Solebury Township v. Department of
Environmental Protection, 2008 EHB 658 (Dec. 1, 2008) (Solebury II).
               In response, the Department contends that the Sierra Club’s argument
that the EHB was too rigid in its evaluation of the causation requirement actually
seeks to diminish the value of that portion of the catalyst test. Instead, the Sierra
Club essentially seeks to give primacy to the fact that it obtained the practical relief
it sought in its consolidated appeals when LEC abandoned its plans to discharge
wastewater in Grassy Island Creek, without the need for establishing a


       5
         “The Sierra Club is not asking this Court to evaluate the sufficiency of the catalyst test.”
(Sierra Club Reply Br. at 3.)

                                                10
cause-and-effect relationship between the consolidated appeals and LEC’s decision.
Responding to the Sierra Club’s claim that the EHB’s decision in this matter is at
odds with its earlier decision in Solebury II, the Department notes that it was on
remand from the Pennsylvania Supreme Court’s decision in Solebury I that the EHB
adopted the catalyst test as a more lenient approach to evaluating fee applications
where there is no final decision on the merits before the EHB and thus no clear
“prevailing party.” The EHB applied the catalyst test in Solebury II on remand,
including the causation requirement. It specifically looked to determine whether
there was a causal relationship between the appeals before the EHB and the actions
taken by the state agencies that ultimately mooted those appeals. Looking to the
evidence, the EHB concluded that the causation requirement was satisfied in
Solebury II. The fact that the EHB looked at the evidence in this case but reached a
different conclusion does not, according to the Department, mean that its decision in
this matter was inconsistent with Solebury II.
             LEC, as Intervenor, generally supports the Department’s position. LEC
argues that the EHB did not abuse its discretion in denying the Fee Application.
According to LEC, the EHB made factual findings based on substantial evidence
and reached reasonable conclusions based on those findings. LEC further maintains
that the EHB’s approach to the Fee Application and its decision are consistent with
Solebury II and this Court’s precedent. While the EHB noted that timing can be a
factor, it also appropriately concluded that it is not necessarily the sole or controlling
factor. LEC argues that what the Sierra Club is seeking is a change in the law, one
that would read the causation prong out of the catalyst test.
             Under Section 307(b) of The Clean Streams Law, the EHB has broad
discretion to award or deny attorneys’ fees and costs in a particular proceeding.


                                           11
Solebury I, 928 A.2d at 1003. This broad discretion includes the authority to adopt
standards by which the EHB will evaluate applications for costs and fees. Id.
at 1004. Such standards, however, must be consistent with “Pennsylvania’s strong
public policy to justly compensate parties [that] challenge agency actions by
liberally interpreting fee-shifting provisions.” Id. For this reason, in Solebury I, the
Pennsylvania Supreme Court held that the EHB may not limit its award of fees and
costs under Section 307(b) only to those parties that obtain a favorable ruling from
the EHB on the merits. Rather, agreeing with this Court, the Pennsylvania Supreme
Court held that the EHB should consider the practical relief that the applicant sought
before the EHB in applying Section 307(b) of The Clean Streams Law to a situation
where, as here, a matter before the EHB is dismissed as moot. Id. at 1004-05.
              Following Solebury I, the EHB adopted the catalyst test, the third
element (the causation requirement) of which is at issue in this matter. This element
requires the applicant to prove, by a preponderance of the evidence, that the
applicant’s “lawsuit brought about a change in an opposing party’s conduct.” Upper
Gwynedd, 9 A.3d at 266. If the salient purpose of the fee shifting provision in The
Clean Streams Law is to compensate those that challenge governmental actions to
advance public policy objectives, Solebury I, it is both reasonable and consonant
with that purpose for the EHB to require a fee applicant to show that,
notwithstanding the absence of a favorable ruling on the merits, its legal challenge
caused, at least in part, the favorable outcome that the applicant sought. As the EHB
observed in Solebury II, “[p]arties are not awarded fees for filing appeals. They are
awarded fees for achieving results.” Solebury II, 2008 EHB at 682.6

       6
         EHB decisions are not binding on this Court. Pa. Trout v. Dep’t Envtl. Prot., 863 A.2d
93, 107 (Pa. Cmwlth. 2004). The EHB, too, is not bound by its precedent. “We are mindful,


                                              12
               Upon review of the EHB’s decision in this matter, as well as the
Pennsylvania Supreme Court’s decision in Solebury I, we disagree with the Sierra
Club’s view that the EHB’s application of the causation requirement in this
particular case was outside the bounds of fairness or inconsistent with the public
policies underlying the fee-shifting provision in Section 307(b) of The Clean
Streams Law. Here, the EHB required the Sierra Club, as movant, to convince the
EHB, by a preponderance of the evidence,7 that the Sierra Club’s challenge to the
WQM and NPDES permits caused, in whole or in part, LEC to redesign its facility
and eliminate wastewater discharge into Grassy Island Creek, which in turn caused
the Department to grant the permit modification to the NPDES permit and to
terminate the WQM permit. See Solebury II, 2008 EHB at 675-76 (“The important
point is that the agency changed its conduct at least in part as a result of the appeal.
The appeal caused the change, not necessarily the ‘merits’ of the appeal.”).
               We see nothing in the EHB’s Opinion that required the Sierra Club to
prove that LEC’s “true motive” for redesigning its planned plant was to moot the
Sierra Club’s appeals of the Department’s permitting decisions. The EHB only
required LEC to prove that there was “more likely than not” a causal connection
between the Sierra Club’s appeals and LEC’s redesign decision. Placing this burden
on the party seeking the relief is consistent with the rules governing practice and


however, that while an administrative agency is not bound by its prior precedent, it must render
consistent opinions and should either follow, distinguish or overrule its own precedent.” Id. at 107
n.5.
       7
         The “preponderance of the evidence” standard is the lowest evidentiary standard and
tantamount to a “more likely than not” inquiry. Carey v. Pa. Dep’t of Corr., 61 A.3d 367, 374 (Pa.
Cmwlth. 2013). In essence, whether the party with the burden of proof satisfies this standard turns
on the fact finder’s weighing of the evidence. See Agostino v. Twp. of Collier, 968 A.2d 258,
269 (Pa. Cmwlth.), appeal denied, 982 A.2d 66 (Pa. 2009).


                                                13
procedure before the EHB and our precedent on fee/cost-shifting provisions. See
25 Pa. Code § 1021.122(a);8 Jones v. Muir, 515 A.2d 855, 859 (Pa. 1986) (“The
applicant for counsel fees has the burden of proving his/her entitlement thereto.”);
Lower Salford, 67 A.3d at 52 (placing burden on applicant).
                 We turn next to the Sierra Club’s claim that the EHB erred in finding
that the Sierra Club failed to meet its burden of proof and persuasion on the causation
requirement or, alternatively stated, that there is no substantial record evidence to
support the EHB’s findings with respect to why LEC redesigned its facility to
eliminate wastewater discharge into Grassy Island Creek. Upon our review of the
EHB’s decision and the evidentiary record, we conclude that substantial record
evidence supports the EHB’s factual findings with respect to the causation
requirement.
                 Specifically, the EHB concluded that the Sierra Club’s only evidence
on the causation element was the relative timing of events—i.e., that LEC redesigned
its facility and sought modification and termination of the challenged permits after
the Sierra Club filed its appeals but before a ruling on the merits. The EHB
considered the Sierra Club’s timing argument, noting expressly that relative timing
can support a finding of causation, particularly in the absence of any other reasonable
explanation. (EHB Opinion at 6.) Such was the case in Solebury II, an action before
the EHB that two townships initiated to challenge the Department’s issuance of an

       8
           Section 1021.122(a) provides, in relevant part:
               In proceedings before the [EHB], the burden of proceeding and the burden
       of proof shall be the same as at common law in that the burden shall normally rest
       with the party asserting the affirmative of an issue. It shall generally be the burden
       of the party asserting the affirmative of the issue to establish it by a preponderance
       of the evidence.
25 Pa. Code § 1021.122(a).

                                                 14
environmental certification to the Pennsylvania Department of Transportation
(PaDOT) for a state highway project. During the pendency of the case before the
EHB, PaDOT redesigned the project. PaDOT also decided to ask the Department to
rescind the environmental certification, which the Department did. PaDOT then
moved to dismiss the townships’ appeals as moot. The EHB granted that motion.
On remand from the Pennsylvania Supreme Court, the EHB considered whether the
townships were entitled to a fee award under Section 307(b) of The Clean Streams
Law.
             With respect to causation, the EHB found expressly that the townships’
appeals were not, in and of themselves, a substantial cause of PaDOT’s decision to
redesign the project. Solebury II, 2008 EHB at 665. The EHB, however, reached
different findings and conclusions with respect to PaDOT’s decision to seek
rescission of the environmental certification. Specifically, the EHB found that
PaDOT had not abandoned the highway project when it sought rescission of the
environmental certification. That certification, the EHB found, was necessary for
the project to move forward, regardless of any redesign decision. The EHB found
specifically: “The only reason that a [Department] witness could imagine why a
certification holder would ask for a rescission was if the underlying project was
cancelled and the certification was not, therefore, ‘needed.’”        Id. at 666-67.
According to the EHB, there was never a time during the townships’ appeals before
the EHB where any party knew that the environmental certification at issue would
not be needed. Id. at 667. For this reason, the EHB concluded that the only possible
justification to seek rescission of the certification while the appeal was pending was
to moot the appeals and avoid litigation. Id. In short, the EHB rejected as not
credible the agencies’ proffered reason for the rescission. Id. at 678-80.


                                         15
             Here, the EHB reached a different conclusion, evaluating a different
body of evidence. Acknowledging that relative timing of events can support a
finding of causation (Solebury II), the EHB considered the evidence offered by LEC
to support LEC’s and the Department’s claim that LEC redesigned its facility to
eliminate the discharge into Grassy Island Creek for purely economic and business
reasons, not as a result of the Sierra Club’s appeals. (EHB Opinion at 6-7.) In so
doing, the EHB credited the testimony of Daniel Ewan, Vice President of an
LEC-affiliated company. As the EHB found: “We have no reason to doubt Mr.
Ewan’s testimony that LEC was engaged in an ongoing process to try to bring down
its costs, and that it was this ongoing process that led to the elimination of the
discharge to Grassy Island Creek.” (Id. at 7). As the fact finder, the EHB in
Solebury II was entitled to give greater weight to the timing of PaDOT’s request to
the Department to rescind the certification than PaDOT’s proffered reasons for that
request. Similarly, as the fact finder here, the EHB was entitled to give greater
weight to Mr. Ewan’s testimony than the temporal relation between the Sierra Club’s
appeal and LEC’s request for a permit modification and termination.
             In short, we see no clear legal error in this case, as the EHB applied the
catalyst test, triggered by the Pennsylvania Supreme Court’s decision in
Solebury I and upheld by this Court in Upper Gwynedd as a lawful standard to
evaluate Section 307(b) fee applications where the applicant did not receive a
favorable final ruling on the merits. In terms of the Sierra Club’s challenges to the
EHB’s fact finding, the EHB’s findings on the causation requirement of the catalyst
test are supported by substantial evidence of record, particularly Mr. Ewan’s
testimony. We may not second guess the EHB’s credibility determinations nor
reweigh the evidence. Finally, although there may be a difference in results, we see


                                         16
no inconsistency between the approach the EHB took in Solebury II and its approach
in this case. Accordingly, we find no abuse of discretion by the EHB and will affirm
its determination.




                                         P. KEVIN BROBSON, Judge




                                        17
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Sierra Club,                              :
                           Petitioner     :
                                          :
               v.                         :   No. 563 C.D. 2018
                                          :
Department of Environmental               :
Protection,                               :
                       Respondent         :



                                        ORDER


               AND NOW, this 11th day of June, 2019, the Order of the Pennsylvania
Environmental Hearing Board, denying Petitioner Sierra Club’s application for fees
and costs, is AFFIRMED.




                                          P. KEVIN BROBSON, Judge
