Environmental Law

Impact of MFS Jury Verdict on PADEP

By Joel Bolstein

The MFS Inc. jury verdict remains a hot topic.  I know it was a hot topic on my blog because I had 5,500 hits on the story that I posted soon after the verdict was announced.  I also received comments from a wide spectrum, with most agreeing that the jury verdict needs to be overturned or there will be a significant adverse impact on the Department's day-to-day operations.  With that said, there were many comments from people saying that Department personnel that cross the line and act unprofessionally need to be held accountable or at least disciplined, pointing out that  private sector managers and employees are routinely held accountable, both civilly and criminally, if their actions violate applicable standards of conduct and law.  It's hard to argue with that sentiment.

In scanning through the complaints that get filed in the federal district court in Philadelphia, I did see that on April 13, 2010, another discrimination suit was filed against the Department.  In that case -- Frank Perano dba GSP Management Co. v. Sean Arbaugh, Randy King, Lee McDonnell -- the plaintiff is alleging that its civil rights were violated by three Department employees in the water quality program in the Southcentral Regional Office in Harrisburg, who allegedly misused their authority and unlawfully deprived the plaintiff of his rights and interfered with the plaintiff's business by selectively enforcing laws and regulations against the plaintiff and disseminating false information regarding the plaintiff's legal status.  I don't know anything more about that case other than what I read in the short summary that I received.  I do know that the plaintiff's counsel is a large Philadelphia-based firm, so the Department will need to take the case very seriously.  I alerted a few people in the Department to the filing of the new complaint, and it seemed like it was news to most of them, so word had not gotten around.  

I'm told that program staff in the regional offices have met with regional counsel staff to understand the implications of the MFS jury verdict.   To date, I have not seen any great defensiveness on the part of the Department staff since the jury verdict was released.  Experienced managers appear more than willing to take responsibility for their actions and their decisions, which is the way it should be.  Program staff appear to have been reassured that there should be no jeopardy if a person acts appropriately while performing their assigned duties.  

Nevertheless, the new complaint may be a sign that additional suits may continue to be filed until something happens with the post trial motions in the MFS case or on appeal to overturn the jury verdict.   I'm told that paperwork is just now being filed with the judge in the MFS case. 

For now, the jury verdict is out there and some regulated entities may want their attorneys to "follow suit".   I continue to raise the yellow caution flag to those that would want to go down that road.  Litigating a civil rights suit against the Department would likely be a very expensive proposition.   When the Department is sued, they are defended by both DEP counsel and the Pennsylvania Attorney General's Office.  That defense would no doubt be expansive and robust because so much is at stake, especially now.   In addition, filing suit against the Department would clearly effect the relationship between any ongoing business  and Department staff that are responsible for providing compliance assistance, as well as permitting, inspecting and regulating that business.   In the MFS case, the company that sued the Department had already gone out of business, so presumably there was little or no risk of damaging any ongoing relationship.   There are generally multiple options for resolving disputes with the Department, all of which would fall far short of filing a discrimination claim.   Even though the MFS jury verdict is out there, businesses would be well advised to continue the process of building strong and productive working relationships with Department staff, in which disputes can be resolved amicably, with people on both sides acting with a high degree of respect and professionalism.              

Full post as published by PA Brownfields Environmental Law on April 23, 2010 (boomark / email).