IN THE COMMONWEALTH COURT OF PENNSYLVANIA. Petitioner : No. 66 C.D : Argued: October 6, 2014 v. : Respondents :

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1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Department of Environmental Protection, Petitioner No. 66 C.D Argued October 6, 2014 v. Hatfield Township Municipal Authority, Horsham Water & Sewer Authority, Bucks County Water & Sewer Authority, Warrington Township Water & Sewer Department, Warwick Township Water and Sewer Authority, The Borough of Lansdale, and Chalfont-New Britain Joint Sewage Authority, Respondents Chalfont-New Britain Township Joint Sewage Authority, No. 112 C.D Petitioner Argued October 6, 2014 v. Commonwealth of Pennsylvania, Department of Environmental Protection, Hatfield Township Municipal Authority, Horsham Water and Sewer Authority, Bucks County Water & Sewer Authority, Warrington Township Water & Sewer Department, Warwick Township Water & Sewer Authority, Borough of Lansdale, Respondents

2 Borough of Lansdale, Petitioner No. 137 C.D Argued October 6, 2014 v. Department of Environmental Protection, Respondent Hatfield Township Municipal Authority, Horsham Water and Sewer Authority, Bucks County No. 142 C.D Water and Sewer Authority, Argued October 6, 2014 Warrington Township Water and Sewer Department, Warwick Township Water and Sewer Authority, Petitioners v. Department of Environmental Protection, Respondent BEFORE HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge (P) HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN FILED December 23, 2014

3 The Commonwealth of Pennsylvania, Department of Environmental Protection (DEP) petitions for review of the December 12, 2013, order of the Environmental Hearing Board (EHB) which, after remand by this court, granted the application for attorney s fees and costs filed by Hatfield Township Municipal Authority, Horsham Water & Sewer Authority, Bucks County Water and Sewer Authority, Warrington Township Water and Sewer Department, Warwick Township Water and Sewer Authority (together, Hatfield), the Borough of Lansdale (Lansdale), and Chalfont-New Britain Joint Sewage Authority (Chalfont) (collectively, Petitioners). Petitioners have filed cross petitions for review challenging the EHB s award, which reduced the requested amount of attorney s fees and costs. We affirm. Petitioners own and operate publicly owned sewage treatment works in the Neshaminy Creek watershed. In 1996, the Commonwealth listed Neshaminy Creek as an impaired waterway. Pursuant to a federal consent decree, the Environmental Protection Agency (EPA) is required to ensure that total maximum daily load assessments (TMDL) are established for impaired waters by See Chalfont-New Britain Joint Sewage Authority v. Department of Environmental Protection, 24 A.3d 470, 472 (Pa. Cmwlth. 2011). In December 2003, DEP established a TMDL for the Neshaminy Creek watershed and submitted it to the EPA for review and approval. The EPA approved the TMDL, but Petitioners challenged the TMDL by filing appeals with the EHB, expressing concern that the TMDL was not scientifically sound. The EHB ordered the parties to discuss settlement. In June 2004, DEP discovered a modeling error and stated that it intended to revise the TMDL to correct the error. However, DEP would

4 not agree to withdraw the flawed TMDL. On July 6, 2004, the EHB issued a stay in the litigation, ordering the parties to continue to make reasonable efforts to resolve the disputed issues. The stay was continued on April 18, 2005, and vacated on June 29, A new stay was issued on August 22, 2006, and continued until DEP withdrew the TMDL. Id. The EHB issued an order on October 20, 2008, stating that the appeals have been settled by the parties and a copy of the settlement agreement having been submitted for inclusion in the record of this case, the appeals are dismissed and the dockets are marked as closed and discontinued. (EHB Order, 10/20/08, at 1.) In November 2009, Petitioners filed an application for attorney s fees and costs pursuant to section 307(b) of the Clean Streams Law (Law). 1 Applying the catalyst approach, 2 the EHB determined that Petitioners were not entitled to attorney s fees and costs because although DEP provided some of the benefit sought by Petitioners, i.e., the withdrawal of the Neshaminy TMDL, that benefit was only temporary. Chalfont-New Britain, 24 A.3d at 474. Further, [t]he EHB also denied Petitioners attorney s fees and costs because their appeals did not advance the goal of the Law to end water pollution and because Petitioners could have settled the appeals but chose not to do so. Id. 1 Act of June 22, 1937, P.L. 1987, as amended, 35 P.S (b). 2 Under the catalyst approach, the EHB considered whether Petitioners had a genuine claim; whether DEP provided some of the benefit sought by Petitioners; and whether Petitioners appeals were a substantial cause of DEP s actions. Chalfont-New Britain, 24 A.3d at

5 Petitioners appealed to this court, which determined that the EHB erroneously concluded that Petitioners were not entitled to attorney s fees and costs and reversed the EHB s order. Id. at 475. Specifically, this court concluded that the withdrawal of the flawed TMDL provided the relief sought and that Petitioners appeals were a substantial cause of DEP s withdrawal of the Neshaminy TMDL, which advanced the statutory goal of ending water pollution. Id. at Moreover, Petitioners settlement position was reasonable. Id. at 475. Accordingly, we reversed. Id. On remand, the EHB sua sponte ordered all parties to brief the question [of] whether the [EHB] has subject matter jurisdiction over the appeals and specifically whether the 2003 [TMDL] [a]ssessment was an appealable action triggering the [EHB s] jurisdiction. (EHB s Decision, 12/12/13, F.F. No. 2.) Petitioners filed amended and supplemental fee petitions. (Id., No. 5.) DEP filed a motion to dismiss the fee proceeding claiming that the EHB lacked jurisdiction over the underlying appeal. (Id., No. 6.) DEP argued that the Neshaminy TMDL was never an appealable action triggering the EHB s jurisdiction and, because the EHB did not have subject matter jurisdiction in the underlying appeal, the EHB was not empowered to award attorney s fees and costs. Thereafter, the EHB issued a decision on December 12, 2013, concluding that it did have jurisdiction. Specifically, the EHB determined that the fees-and-costs-petition phase is an ancillary matter that comes into play after a final order of the EHB. Here, the underlying matter was closed and discontinued by order of the EHB over five years ago, after all parties agreed to the settlement. [O]nce a 3

6 final order has been issued, any jurisdiction of the [EHB] in this matter has terminated-other than over the pending fee petitions. (EHB Decision, 12/12/13, at 9.) As to Petitioners request for attorney s fees and costs, the EHB observed that section 307(b) of the Law provides that [t]he [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. 35 P.S (b). Section 307(b) of the Law clearly vests broad discretion in the EHB. Lucchino v. Department of Environmental Protection, 809 A.2d 264, 269 (Pa. 2002). The EHB then utilized a three-step process to determine whether Petitioners demonstrated their eligibility for an award of attorney s fees and costs. First, the EHB considered whether the attorney s fees and costs were incurred in a proceeding pursuant to the Law. Next, the EHB considered whether Petitioners satisfied the threshold criteria for an award. Finally, the EHB made a determination as to the reasonableness of the award under the facts and circumstances of the case. (EHB Decision, 12/12/13, at 11.) The EHB concluded that the appeals filed by Petitioners were clearly pursuant to the Law because the appeals implicated the discharge of pollutants into Commonwealth waters and the Law s regulations were at the center of the controversy. In determining whether Petitioners were eligible for an award of attorney s fees and costs, the EHB utilized the catalyst approach and determined that 4

7 Petitioners appeals stated genuine claims and that DEP provided the benefit sought in the appeals, i.e., the withdrawal of the TMDL. Finally, the EHB concluded that not all of the attorney s fees and costs were reasonably incurred and granted the award of attorney s fees and costs, subject to adjustments. 3 This appeal followed. 4 Initially, DEP argues that the EHB erred in determining that it had jurisdiction in this case. Specifically, DEP claims that the EHB did not have jurisdiction in the underlying matter and, thus, did not have jurisdiction in the fee petition proceeding. DEP argues that where the EHB lacks subject matter jurisdiction over the underlying appeals, it also lacks the power to award fees based on those appeals. DEP maintains that a fee proceeding is not a separate suit but rather is a matter ancillary to the underlying action. Samuel-Bassett v. Kia Motors America, Inc., 34 A.3d 1, 48 (Pa. 2011). Thus, if subject matter jurisdiction was lacking from 3 Specifically, Hatfield sought $525, but was awarded $215, Lansdale sought $651, but was awarded $227, Chalfont sought $140, but was awarded $65, In reducing the awards, the EHB determined that requested costs and fees were unrelated to the litigation itself; the hourly rate requested by counsel was in excess of the customary commercial rate for a municipal client; and Petitioners engaged in work that was excessive, redundant, and unnecessary. In determining Petitioners attorney s fees and costs awards, the EHB divided the proceeding into four categories. Phase One covered litigation of the TMDL before the EHB, which included the research, drafting, and filing of the initial notice of appeal through the stipulation of settlement and dismissal of the appeals in October Phase Two covered the attorney s fees and costs claimed for the initial fee litigation before the EHB. Phase Three covered the fees and costs related to Petitioners appeal of the EHB s August 25, 2010, order through the Commonwealth Court s reversal and the Supreme Court s denial of allowance of appeal. Phase Four included Petitioners activities before the EHB following the Supreme Court s denial of allowance of appeal. 4 The EHB has broad discretion with respect to an award of costs and attorney s fees [and] [w]e will not overturn the EHB s exercise of discretion absent fraud, bad faith or a flagrant abuse of discretion. Chalfont-New Britain, 24 A.3d at 474 n.10. 5

8 the outset, then the EHB had no incidental jurisdiction to award attorney s fees and costs. DEP states that issues of jurisdiction cannot be waived. See Commonwealth v. Locust Township, 968 A.2d 1263, 1269 (Pa. 2009). DEP claims that the EHB did not have jurisdiction in the underlying matter because the Neshaminy Creek TMDL was not a final DEP action that affected anyone s rights. A TMDL is a planning document that outlines a pollutant budget for a watershed; a TMDL does not impose discharge requirements on dischargers until it is implemented in a permit. Chalfont-New Britain, 24 A.3d at 472 n.2. Therefore, DEP argues that its issuance of a TMDL cannot invoke the EHB s jurisdiction. We observe, however, that whether the EHB had jurisdiction of the underlying matter, i.e., Petitioners challenge to the TMDL, which was prepared by DEP and approved by the EPA, is moot because those proceedings concluded in Specifically, in 2008, upon stipulation of the parties, the matter was marked closed and the appeals [were] dismissed and the dockets [were] marked as closed and discontinued. (EHB Order, 10/20/08, at 1.) As DEP correctly states, the issue of subject matter jurisdiction cannot be waived and may be raised at any time by the parties or by the court. Housing Authority of the City of Pittsburgh v. Van Osdol, 40 A.3d 209, 213 n.5 (Pa. Cmwlth. 2012). However, the issue must nonetheless be raised during the proceedings. The underlying matter was resolved approximately five years ago and no appeal was taken of the order which dismissed the underlying appeal. The law is not concerned 6

9 with matters that have become moot, and the rule is well and wisely established that a court will act only where a real controversy exists. Excellent Laundry Company v. Szekeres, 114 A.2d 176, 177 (Pa. 1955). Next, DEP argues that the EHB erred in concluding that Petitioners demonstrated that they were eligible for attorney s fees and costs pursuant to the catalyst approach. DEP argues that the catalyst approach was not previously decided and that DEP did not provide the requested relief on its own. Specifically, DEP claims that it could not withdraw the TMDL on its own because such action required the approval of the EPA. 5 DEP argues that the catalyst approach was not previously decided by this court. We disagree. In reversing the EHB s initial decision to deny Petitioners requests for costs and attorney s fees, this court addressed the EHB s utilization of the catalyst approach. The approach included determining whether Petitioners had a genuine claim, whether DEP provided some of the benefits sought by Petitioners, and whether Petitioners appeals were a substantial cause of DEP s actions. Chalfont- New Britain, 24 A.3d at 474. We concluded that the EHB erred in denying costs and fees based on its determination that although DEP provided some of the benefit sought by Petitioners, the benefit was temporary, and erred in concluding that DEP s 5 Section 303(d) of the federal Clean Water Act (Act), 33 U.S.C. 1313(d), provides that DEP is to establish a TMDL for affected waterways, which the EPA may approve or disapprove. Here, the EPA approved the TMDL. Although the TMDL was later withdrawn, the Act does not address the procedure. 7

10 withdrawal of the TMDL did not advance the statutory goal of ending water pollution. Accordingly, this court reversed the EHB s denial of Petitioners request for an award of costs and attorney s fees. In doing so, we specifically stated that the EHB erroneous[ly] conclu[ded] that Petitioners were not entitled to attorney s fees and costs. Chalfont-New Britain, 24 A.3d at 475. As such, we have already determined that Petitioners are entitled to attorney s fees and costs, and we will not revisit the issue. We next address the EHB s award of costs and attorney s fees. The EHB initially observed that it has broad discretion to award only such fees as are appropriate and reasonably incurred under the facts of the case. See 35 P.S (b); Lucchino, 809 A.2d at 269. The reasonableness of a fee is the lodestar the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The party seeking an award of fees has the burden to provide evidence supporting the hours worked and the rates claimed. 25 Pa. Code (b)(4). The party opposing the fee, here DEP, then has the burden of contesting with specificity any hours, rates, or other fees it believes were unreasonably incurred. The EHB determined that Phase One covered the litigation of the TMDL before the EHB, including the research, drafting, and filing of the initial notice of appeal through the stipulation of settlement and dismissal of the appeals in October The EHB observed that Hatfield and Lansdale entered into a joint stipulation 8

11 with the DEP regarding the fees and costs of Phase One. Hatfield requested $239,423, which represented a 10% reduction agreed to by all parties to eliminate the need for a detailed examination of the billing invoices. In acknowledging the stipulation of attorney s fees and costs, the EHB also observed that the stipulation between [t]he parties reserves the right to argue the recoverability of these costs and fees. (Joint Stip., 59.) In reducing the amount of attorney s fees and costs requested by Hatfield, the EHB concluded that much of the fees and costs were not classic litigation fees and costs but rather were largely unrelated to the litigation itself. Specifically, the EHB observed that the litigation was stayed for much of the time encompassing Phase One and that much of Hatfield s bills included work for routine non-litigation activities that occur when DEP and other interested parties are involved in planning and implementing new policies. Hatfield s fee petition requested fees for interaction with people and entities that were not parties to the litigation. Recognizing that during the stay Hatfield was required to file status reports and participate in conference calls, the EHB concluded that these types of activities accounted for 25% of the requested amount for Phase One. Thus, the EHB reduced Hatfield s request by 75%. As to Lansdale s requested fees, the EHB noted that DEP and Lansdale also entered into a stipulation as to the attorney s fees and costs incurred by Lansdale. The EHB used the same rationale for reducing attorney s fees and costs as it did for Hatfield. The EHB, however, also found an additional reason to award less than the 9

12 total requested in Phase One. The EHB noted that Lansdale s and Hatfield s activities and approach to the litigation remained identical throughout the case and it was clear that the parties worked closely together. Both Lansdale s and Hatfield s goal was the development of a watershed-wide TMDL, thus evidencing that the claimed problems were not unique to any one entity. The EHB noted that Hatfield represented five entities, encompassing eight permitted facilities. Given that there was nothing unique about Lansdale s interest in appealing the TMDL, the EHB concluded that much of the work done by Lansdale s counsel was excessive, redundant, and unnecessary. (EHB Decision, 12/12/13, at 30.) Lansdale s decision to maintain separate counsel throughout the appeal process created duplicative work. Thus, in addition to determining that 25% of the amount requested for Phase One represented the reasonable amount of time to file status reports and participate in conference calls, thereby reducing Lansdale s request by 75%, the EHB further reduced the amount by 20% because of redundant and unnecessary work. As to Chalfont, the EHB noted that Chalfont sought less than 10% of the amounts requested by Hatfield or Lansdale. Unlike Hatfield and Lansdale, Chalfont did not stipulate with DEP regarding its attorney s fees and costs in Phase One. The EHB concluded that Chalfont, like Lansdale, decided to proceed in this matter on its own, a decision that resulted in work that was excessive, redundant, and unnecessary. (Id., at 36.) The EHB then reduced the award of attorney s fees and 10

13 costs by 20% to reflect its determination that certain fees were not reasonably incurred. Initially, we will address the stipulation as it affects Hatfield s and Lansdale s attorney s fees and costs for Phase One. Both parties entered into a stipulation with DEP, which provides (Joint. Stip. 59.) The costs and fees incurred in the instant appeal of the TMDL by the Borough of Lansdale and the Hatfield [Petitioners], prior to the filing of the instant fee petition are $287,245.27, and $239, respectively. The parties have not stipulated to costs and fees associated with filing and litigating the instant fee petition, which will be presented by such [Petitioners] during or subsequent to the hearing to be held in this matter. The parties reserve the right to argue the recoverability of these costs and fees. Pursuant to 25 Pa. Code (b)(4), a party seeking attorney s fees must submit evidence concerning the hours expended on the case, the customary commercial rate of payment for such services in the area and the experience, reputation and ability of the individual or individuals performing the services. Per the stipulation, the parties agreed to the costs and fees incurred during Phase One. By its terms, however, the stipulation was not an agreement as to the reasonableness of the attorney s fees and costs. Hatfield and Lansdale argue that the EHB erred in reducing the stipulated attorney s fees by 75% during the stay of the litigation imposed by the 11

14 EHB in July Although the EHB concluded that much of the time billed by Hatfield and Lansdale was for matters unrelated to the litigation itself, both parties argue that the attorney s fees incurred during the stay were attributable to the EHB s July 2004 order, which directed Petitioners to undertake various activities related to revision of the Neshaminy Creek TMDL, including the submission of comments. Although the EHB significantly reduced Hatfield s requested attorney s fees and costs in Phase One, we cannot conclude that the EHB abused its discretion. The EHB acknowledged that Hatfield incurred attorney s fees and costs pursuant to the EHB s stay order. These activities included the filing of status reports, participation in conference calls, and settlement discussions. However, the EHB also concluded that Hatfield billed for activities not contemplated by the stay order, specifically, interaction with parties and entities that were not part of the underlying action. Moreover, the EHB determined that some of the attorney s fees and costs would have been incurred by the parties regardless of whether an appeal was pending before the EHB. As such, the EHB determined that 25% of the requested amount was reasonably attributed to the time the case was stayed. As to Lansdale, in addition to reducing its request by 75%, the EHB further reduced its requested reward by 20%. Lansdale claims that the EHB punished it for having retained its own counsel. We disagree. As observed by the EHB, Lansdale, within its right, decided to proceed in this case with its own counsel. Nonetheless, there was nothing unique about Lansdale s interests in appealing the TMDL. The approach taken by Lansdale 12

15 remained identical to that of Hatfield throughout the case. Because the EHB has the authority to award reasonable attorney s fees and costs, we find no error in the EHB s further reduction of Lansdale s request because of the EHB s determination that work performed was excessive, redundant, and unnecessary. Chalfont, unlike Hatfield and Lansdale, did not enter into a joint stipulation regarding its costs and fees with the EHB. Chalfont argues that the EHB erred in reducing its requested fee by 20%. Specifically, Chalfont argues that unlike Lansdale and Hatfield, which sought to formulate a new TMDL, Chalfont sought only to have the TMDL withdrawn and was successful. Although Chalfont was successful in its efforts, such does not negate the EHB s conclusion that a percentage of the requested fee was not reasonably incurred. We find no error in the EHB s conclusion that much of Chalfont s efforts duplicated those of Lansdale, resulting in excessive, redundant, and unnecessary fees. Next, we address Phase Two, which involved the initial fee litigation before the EHB. The EHB determined that, as to Hatfield, counsel s hourly rate of $360 was in excess of the customary commercial rate for municipal clients and reduced it to $300. The EHB also noted that Hatfield s counsel spent 500 hours pursuing attorney s fees and costs for Phase One and spent only slightly more time, 550 hours, on the underlying TMDL litigation. The EHB reduced the amount of hours requested by Hatfield by 50%, concluding that the hours requested greatly exceeded the amount required to prove its fee petition. 13

16 As to Lansdale, the EHB noted that Lansdale spent 750 hours on its pursuit of attorney s fees and costs incurred in the underlying litigation. The EHB determined this was clearly excessive and reduced the amount by 50%. As an example of excessiveness, the EHB noted that Lansdale spent 100 hours in preparing a brief in opposition to DEP s brief opposing Lansdale s claim for attorney s fees. Also, Lansdale spent 100 hours preparing for an EHB hearing in 2010, at which Lansdale presented the testimony of two witnesses, whose testimony totaled two hours. The EHB also reduced the hourly rate for Lansdale s counsel. The EHB further found that the 380 hours Chalfont spent in Phase Two was excessive, redundant, and unnecessary inasmuch as it only spent 91 hours on the underlying litigation. Although the EHB acknowledged that some of the hours spent were in response to DEP s vigorous opposition to the fee petitions, the EHB concluded that the amount of time spent was excessive. The EHB noted that Chalfont did not play as active a role in the initial litigation as the other parties, did not contribute in the discovery process that unearthed the error in the TMDL, and did not participate in meetings between DEP and the other parties. As such, the EHB further reduced the lodestar amount by 33%. Hatfield argues that the EHB erred in determining that the hourly rate for its lead counsel should be $300 rather than $360. Hatfield claims that the EHB should have credited the affidavit supplied by its counsel. We observe that the EHB, in addition to considering the affidavit supplied by Hatfield s counsel, considered the affidavits of the other parties participating attorneys. The EHB considered 14

17 backgrounds, years of experience, and recent representation. The EHB then concluded that questions of resolving conflicts in the evidence, witness credibility, and evidentiary weight are properly within the exclusive discretion of [the EHB,] the fact finding agency, and are not usually matters for a reviewing court. Birdsboro v. Department of Environmental Protection, 795 A.2d 444, (Pa. Cmwlth. 2002) (citation omitted). Moreover, although Hatfield argues that the EHB should have relied on the stipulation in determining attorney s fees, we observe that the stipulation only applied to Phase One. Accordingly, the EHB did not err. Hatfield further argues that the EHB abused its discretion in reducing the amount of hours requested by 50%. Although the EHB characterized the work as excessive, redundant, and unnecessary, Hatfield argues that during Phase Two it had to file a motion to compel discovery, a pre-hearing memorandum, and a response to a motion in limine. Moreover, as acknowledged by the EHB, the amount of hours Hatfield spent in Phase Two was a result of the EHB s adoption of the catalyst theory, which required Hatfield to demonstrate that it played a key role in DEP s withdrawal of the TMDL. Lansdale argues that the EHB erred in reducing its requested award by 20% in every phase of the proceedings because Lansdale retained its own counsel. Lansdale maintains that the EHB s decision runs afoul of Lansdale s clear right to be represented by the counsel of its choice. Further, Lansdale argues that the EHB erred in reducing its counsel s hourly rate. However, as previously discussed, the EHB has discretion to consider the affidavits of other counsel in determining a reasonable hourly rate. 15

18 Chalfont claims the EHB erred when it took a 50% reduction in Chalfont s hours in setting the Phase Two loadstar. Chalfont states that in the Phase Two proceedings, it was seeking its Phase One attorney s fees and costs, which were less than 10% of those requested by Hatfield and Lansdale. The EHB decided to address all Phase One attorney s fees and costs in the same proceeding. Thus, the EHB required Chalfont to participate in multiple days of hearings. Chalfont was not the cause of the protracted Phase Two hearings, yet Chalfont was forced to attend the hearings. As noted by the EHB, Chalfont spent four times as many hours in Phase Two than it did in Phase One challenging the TMDL. As such, we cannot conclude that the EHB erred in reducing Chalfont s award as excessive. Phase Three included the period from Petitioners appeal of the EHB s order denying attorney s fees to the proceedings before the state appellate courts. The EHB reduced the amount requested as to each Petitioner. The EHB determined that Hatfield s hours for this phase totaled 344. Hatfield spent 100 hours on its initial brief and 50 hours on it reply brief. As an example of the excessiveness of hours, the EHB found that the briefs prepared for filing in the Commonwealth and Supreme Courts were largely repetitive of the argument and brief filed with the EHB. 16

19 As to Lansdale, the EHB determined that the more than 400 hours expended during Phase Three were excessive given the commonality of the issues presented on appeal with those briefed before the EHB. For Chalfont, the EHB concluded that the hours spent on the appeals during Phase Three were reasonable. However, the EHB reduced the lodestar by 33% because of Chalfont s lesser role in the litigation. Hatfield argues that it was successful on appeal to this court and then had to respond to DEP s unsuccessful application for reargument and DEP s unsuccessful petition to the Supreme Court. A party cannot litigate tenaciously and then be heard to complain about the time necessarily spent by [the other party] in response. Krebs v. United Refining Company, 893 A.2d 776, 793 n.26 (Pa. Super. 2006) (citation omitted). Lansdale claims that its briefs to this court were different than those presented to the EHB. In fact, Petitioners were successful before this court. Chalfont argues that after setting the lodestar for Phase Three, the EHB erred in imposing a 33% flat reduction in determining the attorney s fees to be awarded. In Phase Three, Petitioners petitions for review were consolidated and it proceeded as a single appeal. Chalfont argues that its efforts were more streamlined and efficient than the efforts of the other parties. 17

20 As previously stated, as to all Petitioners, it is within the EHB s discretion to ensure a reasonable award. Finally, Phase Four includes the post-appeal activities before the EHB. The EHB again reduced the requested attorney s fees as to all Petitioners. Hatfield argues that this phase of the litigation primarily covered the issue of whether the EHB had jurisdiction to hear both the original TMDL appeal and the application for attorney s fees and costs. Hatfield maintains that it did not raise these issues and yet was forced to address them through briefs, conference calls, and a hearing. Lansdale again argues that the EHB erred in reducing its attorney s fees by 20% because it retained its own lawyer. The EHB made no factual finding that Lansdale s retention of its own counsel resulted in any actual waste, duplication of effort, or inefficiency. Chalfont argues that the time spent in Phase Four was driven by the issues raised by the EHB, specifically, the EHB s jurisdiction over the original TMDL. As to Hatfield, we conclude that due to the duplicative nature of many of the filings and the limited number of issues, a reduction in the requested attorney s fees was proper. Similarly, it was within the EHB s discretion to reduce Lansdale s requested award because its decision to proceed on its own created excessive and 18

21 unnecessary work. As to Chalfont, the EHB properly exercised its discretion to reduce Chalfont s requested award based on excessive, redundant, and unnecessary work, and its lesser role in the proceedings. Accordingly, we affirm the EHB s decision. ROCHELLE S. FRIEDMAN, Senior Judge 19

22 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Department of Environmental Protection, Petitioner No. 66 C.D v. Hatfield Township Municipal Authority, Horsham Water & Sewer Authority, Bucks County Water & Sewer Authority, Warrington Township Water & Sewer Department, Warwick Township Water and Sewer Authority, The Borough of Lansdale, and Chalfont-New Britain Joint Sewage Authority, Respondents Chalfont-New Britain Township Joint Sewage Authority, No. 112 C.D Petitioner v. Commonwealth of Pennsylvania, Department of Environmental Protection, Hatfield Township Municipal Authority, Horsham Water and Sewer Authority, Bucks County Water & Sewer Authority, Warrington Township Water & Sewer Department, Warwick Township Water & Sewer Authority, Borough of Lansdale, Respondents

23 Borough of Lansdale, Petitioner No. 137 C.D v. Department of Environmental Protection, Respondent Hatfield Township Municipal Authority, Horsham Water and Sewer Authority, Bucks County No. 142 C.D Water and Sewer Authority, Warrington Township Water and Sewer Department, Warwick Township Water and Sewer Authority, Petitioners v. Department of Environmental Protection, Respondent O R D E R AND NOW, this 23 rd day of December, 2014, we hereby affirm the December 12, 2013, order of the Environmental Hearing Board. ROCHELLE S. FRIEDMAN, Senior Judge