Verdict against DEP employees' actions stirs fears

A federal jury's verdict that four Pennsylvania Department of Environmental Protection employees are liable for $6.5 million in damages stemming from a series of disputed enforcement actions has triggered shock waves in Harrisburg, where officials are voicing concern that they will be held personally liable for efforts to uphold environmental laws.

The verdict, by a jury in U.S. District Court in Philadelphia, found that the four DEP employees had launched an intensive crackdown on MFS Inc., of Bethlehem, a now-defunct manufacturer of industrial insulation and ceiling tiles, as retaliation after the company complained to state lawmakers about unfair treatment.

"We are really concerned by the verdict, and we have a motion pending before [U.S. District Judge Joel Slomsky] to have the verdict thrown out," said DEP Secretary John Hanger. "I believe it is a miscarriage of justice."

Hanger added that the state would also, if necessary, pay the costs of the jury award - a clear signal of concern in Harrisburg, observers said, that the verdict could cause individual DEP officials to pull back and overall undermine enforcement actions in a department that has suffered through a series of budget cuts and downsizing.

Wayne C. Stansfield of Reed Smith L.L.P. in Philadelphia, who is representing MFS, declined to comment yesterday on the verdict.

The case has drawn attention from a wide variety of environmental lawyers and officials, who described it as highly unusual. Typically, state government workers are protected by the doctrine of sovereign immunity, which bars lawsuits against government agencies exercising normal duties.

In this instance, MFS overcame the sovereign-immunity barrier by alleging that the DEP officials individually violated its constitutional right of due process and free speech by improperly enforcing environmental laws and acting outside the scope of their employment.

"I see this as a problem on the enforcement side," said Joel Bolstein, deputy secretary of the DEP from 1995 to 1998 and an environmental lawyer with the Philadelphia firm Fox Rothschild L.L.P. "Up until now, state workers in this agency never imagined that they could be subject to a discrimination claim and personal liability for making a decision on a permit."

The employees, who were sued as individuals, are Michael Bedrin, director of the DEP's northeast regional office; Thomas DiLazaro, former air-quality program manager, who retired; Mark Wejksner, the current air-quality program manager; and Sean Robbins, a lawyer with the agency.

According to papers filed in the case, the dispute dates to late 2001, when the DEP issued a violation notice to MFS for odors allegedly coming from its plant.

Little more than a year later, the DEP issued another citation, a field-enforcement order, late on a Friday afternoon that required the company to respond by the following Monday.

MFS responded by complaining to lawmakers in Harrisburg, who were not identified in the complaint. At least one wrote the DEP expressing concern about the enforcement action.

Shortly thereafter, DEP officials lodged 13 citations against MFS in a two-week period, the documents say. One of the defendants in the case allegedly told an MFS official that he had been irked that the company sought a political solution by reaching out to elected lawmakers.

In an opinion issued last year denying a request that the case be thrown out, Slomsky, quoting press coverage of the case, said one of the defendants, DiLazaro, had declared that "MFS is definitely a nuisance."

The company alleged that DEP officials knew there was another potential source of odor, a nearby sewage-treatment plant. MFS denied that it was the source of the odors and alleged that the DEP never proved otherwise.

The plant itself had been on the radar screen of the federal Environmental Protection Agency, which sued MFS in 2005, alleging that the company had not been properly monitoring or controlling emissions.

The company eventually settled its dispute with the EPA, but it says it met with another state DEP roadblock in August 2007. Then the DEP informed the company that it would not be issuing it a key air-emissions permit because of the odor concerns.

During this period, the documents indicate, MFS had begun discussions with another company that had expressed interest in buying the plant.

By January 2008, the DEP had agreed to issue an air permit, but with two conditions that MFS asserted that made its business untenable: One gave the DEP the right to shut down MFS, without appeal, if it found evidence of environmental violations. The other would have effectively tossed out the company's earlier agreement with the EPA, imposing even tougher standards on it.

In March 2008, with chances dim that the DEP would issue a permit, the company sold off its machinery and liquidated other assets.

A few months later, it sued, alleging that its constitutional rights had been violated.