$6.5 Million Verdict Against DEP Employees
FOUR DEP EMPLOYEES FOUND LIABLE FOR CIVIL RIGHTS
VIOLATIONS-PENALTIES TOTAL $6.5 MILLION
Liability was based on taking punitive permitting and
enforcement actions outside of their legal authority
On March 3, 2010 a Federal jury returned verdicts of liability and assessed a total of $6.5 million in damages against four individuals employed by the Pennsylvania Department of Environmental Protection. DEP was not a party in the case. The four employees were a former and a current air quality Program Manager, a Regional Director, and an attorney for the Department. The action was brought in the Federal District Court for the Eastern District of Pennsylvania in May, 2008 as a Civil Rights Act complaint. The highest award-$2.6 million-was awarded against the former Program Manager who initiated the actions; the Regional Director and counsel were each assessed $1.625 million, and the Program Manager's successor (who had not been present for the entire course of conduct, but participated in the later actions) was assessed $650,000.
The facts of the case are somewhat lengthy and are summarized in a decision of the District Court entered on September 25, 2009 denying in substantive part a motion for summary judgment filed by the Defendants. According to the Court, the facts of record establish that in 2001, after 13 years of operation without a complaint, the company (MFS, Inc., a mineral wool producer in Bethlehem, PA) received an informal Notice of Violation for malodors from DEP. DEP then ignored the company's request for information related to the NOV. Soon thereafter, with no additional investigation or complaints, a formal enforcement order was issued. Following this, things escalated quickly, apparently because the company complained to a legislator about the unfair requirements in the order as well as the improper manner in which it was issued (reportedly, it was delivered at 5:10 pm on a Friday and required a full response on the next business day). According to the Court's recital of the facts, the DEP employees, in spite of admonishment of their actions by an Environmental Hearing Board judge (who stated on the record that they were acting like "little children"), then began to repeatedly cite the company for alleged malodor violations without conducting the investigations required by law and in spite of evidence that the malodors likely originated from other sources. At one point the DEP officials reportedly told company officials, contrary to law, that it was the company's responsibility to prove that it was not emitting malodors.
In addition to issuing numerous unsupported notices of violation, the employees refused to issue a renewed air quality permit incorporating requirements imposed by EPA (in fact, they insisted on including requirements contrary to a Consent Decree between the company and EPA). The defendants also reportedly provided false information to the DEP Secretary prior to her meeting with company officials, a meeting that was requested by the company to try to resolve the continuing mistreatment.
Being unable to operate without a permit, or to sell its operation under the false noncompliance cloud, the company went out of business and liquidated its assets. (In another twist, DEP finally issued the air quality permit about ten months after the company liquidated; this was eight months after the company filed suit; the Court's Opinion does not state what excuse DEP gave for issuing a permit to a non-existent facility.)
The jury found that the actions of all four of the defendants denied the company its constitutional due process rights and interfered with its contractual rights. Although the jury found that the defendants might reasonably have believed that the company emitted malodors, they also found that all four officials knew that their actions were not based on a mistake of fact and that they knew their actions were legally improper. Most importantly, the jury specifically found that each of the four defendants was not acting within the scope of his employment. That is, the jury found that they were not enforcing the law, instead the evidence at trial showed that they were personally harassing the company to punish it for objecting to the mistreatment.
The case is interesting in a number of respects. First, the size of the award is significant. Although the plaintiff will probably never be able to collect the full amount (unless the Department is successful in obtaining state tax money to pay the awards, as the Secretary has threatened to do), the jury's award of over $6 million indicates the gravity of the situation. Secondly, two of the officials- the Regional Director and counsel-appear to have been found liable because of their involvement in a supervisory and advisory capacity: supporting, rather than initiating, the harassment by the Program Managers. The case also appears to be the first one in Pennsylvania in which DEP officials were successfully sued personally for abusing their powers. It is clear from the Court's opinion and the detailed jury responses that this case was not about officials being vigorous in their enforcement of the law, but was about abuse of power, denial of Constitutional rights, and actions of personal animosity that fell well outside of the scope of employment. Of particular note, the record shows that the company repeatedly tried to resolve the problems through official channels, but was actively blocked by the defendants from doing so.
According to news articles (no statement has been posted on the DEP website), DEP Secretary Hanger said that the verdict would hamper DEP in its enforcement of environmental laws and that DEP will appeal the verdict. He further stated that, if the penalties are ultimately imposed, the agency will try to use State funds to pay them.
