DEP Officials Hit With $6.5 Million Verdict

A case recently reported in the media may have implications in the Hazleton Creek Properties issue brought by Chuck Rogers of the Department of Environmentl Resources.

DEP Officials Personally Hit With $6.5 Million Verdict

In 2003, MFS applied to the DEP for a renewal of its Title V air quality operating permit, which required MFS to meet several EPA standards. After entering into a consent decree with the EPA to address these standards, MFS again requested that DEP issue it an operating permit. However, DEP regional air program staff informed MFS that they would not reissue a permit. MFS requested a meeting with the DEP Secretary. Prior to the meeting, the same regional staff gave the Secretary a summary of the MFS matter containing several allegedly misleading statements, and the Secretary ultimately decided to leave the issue of a permit up to the regional officials. The DEP regional officials offered to issue the permit on some 91 conditions, including an absolute right to shut the facility down, and compliance standards that one of the DEP employees admitted re-wrote an earlier EPA consent decree in an effort to impose more stringent standards on MFS. When another mineral wool manufacturing company expressed interest in purchasing the MFS facility, one of the DEP officials wrote a mutual customer of the two companies indicating that MFS had malodor and compliance issues. With the hope of any resolution looking dim, MFS sold off its machinery and liquidated in March 2008.

In May 2008, MFS instituted suit in federal court against four DEP staff members (including the regional director, a staff attorney, and regional air program managers) alleging that their various involvement in the actions described above amounted to violations of MFS's constitutional rights of due process and equal protection, intentional interference with a prospective contract, and retaliation.

The jury found that the four DEP employees had retaliated against MFS for exercising its First Amendment rights in requesting a meeting with the DEP Secretary.[1] In response to MFS's state law claim for interference with a prospective contract, the state employees asserted protection under Pennsylvania's Sovereign Immunity Act. The Court, however, stripped their sovereign immunity because there was sufficient evidence for a jury to find that in their actions, the employees' intent was not to do their jobs, but instead to do harm to MFS. The jury agreed and found that the state employees had both interfered with a prospective contract and acted outside the scope of their employment. On the constitutional challenges, the Court also denied the employees protection at the summary judgment stage under the doctrine of qualified immunity, which protects government officials from civil suits for damages where their conduct does not violate clearly established statutory or constitutional rights that would have been known to a reasonable official. The jury found violations of due process and equal protection, and made further findings of fact which denied the officials immunity.[2] The jury verdict ordered the four government employees to pay MFS $6.5 million in damages.

A memo leaked to the Times Leader appears to have political finger and handprints all over it. Frank Keel of Hazleton Creek Properties had this to say about the matter in an article written by Kent Jackson of the Standard Speaker.

Frank Keel, a spokesman for Hazleton Creek, said leak of the memo was disturbing for many reasons and occurred during a contentious election season.

"One might speculate that there is more than a tinge of politics at work in these out-of-nowhere allegations," Keel said in a statement. "The company met every condition and complied with every regulation set forth by the DEP over many months and in a very transparent process, which is why it was granted the permit to begin work on this environmentally and economically sound mine reclamation project."

Chuck Rogers raised issues over the permitting for the Hazleton Creek Properties project by stating his office was not involved in the permitting process according to Jerry Lynott of the Times Leader. According to officials at DEP all permitting is performed at the central office in Harrisburg, not in the regional offices. Rogers makes the claim that Hazleton Creek Properties is in violation of its permit yet no material has come to the site in question.

There will be more on this issue in the days and weeks to come.