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DEP Employees Found Unprotected by Sovereign Immunity

By: Amanda Sundquist

In an unusual verdict, a jury for the United States District Court for the Eastern District of Pennsylvania, in MFS, Inc. v Dilazaro, has found four Pennsylvania Department of Environmental Protection employees individually liable for $6.5 million dollars in damages. Typically, government workers are protected by the doctrine of sovereign immunity from such claims when acting within the scope of their official duties. However, MFS, in asserting First Amendment retaliation and equal protection claims under §1983 and procedural and substantive due process claims, alleged the employees had acted outside of the scope of their employment. The jury agreed.

The case arose out of a series of disputes dating back to 2001 involving odors from a mineral wool manufacturing facility that MFS had operated since 1988. The disputes culminated in 2007, when the Department declined to renew MFS’s Title V Operational Permit. The Department claimed MFS’s facility was emitting malodors, even though MFS had not recently received any notices of violation. Ultimately, the Department issued a draft of a conditional Title V permit which contained 91 conditions. MFS objected to two conditions which it alleged were not legally valid or reasonable: (1) a condition which imposed an operating permit compliance schedule that would have altered the terms of a Consent Decree entered into as part of a previous case, and (2) a condition which granted the Department the absolute right to shut down MFS upon issuance of a notice of violation. Shortly thereafter, MFS brought suit. More factual background can be found on the Court’s website here and here.

The Philadelphia Inquirer reports that the Department has a motion pending before the Court to have the verdict overturned. Stay tuned for new developments on this case.

For more information, contact Amanda Sundquist.

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