MFS, INC. v. Dilazaro

OPINION

SLOMSKY, District Judge.

Table of Contents

I. INTRODUCTION.........................................................387

II. STATEMENT OF FACTS..................................................388

A. Testimony of James Hauff...............................................389

i. Mineral Wool Plant................................................389

ii. Notices of Violation and Field Enforcement Order.....................390

iii. Mineral Wool NESHAP............................................392

iv. Defendant DiLazaro’s Public Comments .............................393

v. Other Facilities Near MFS.........................................394

vi. January 2006 Deficiency Letter.....................................395

vii. Consent Decree Between EPA and MFS.............................401

viii. Briefing Memorandum.............................................403

ix. January 2008 Draft Permit.........................................404

B. Testimony of Becky Easley..............................................405

C. Testimony of Defendant Thomas DiLazaro ................................407

i. Title V Permits Generally..........................................408

ii. Field Enforcement Order..........................................408

iii. Defendant DiLazaro’s Public Comments .............................409

iv. MFS’s Title V Application..........................................410

D. Testimony of Jack Cahalan..............................................410

E. Testimony of Defendant Michael Bedrin...................................411

F. Testimony of Defendant Mark Wejkszner.................................413

G. Testimony of Defendant Sean Robbins....................................413

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i. Defendant Robbins’s Comments on the Consent Decree................414

ii. December 2007 Meeting with Secretary MeGinty......................416

ii. January 2008 Draft Permit.........................................416

III. LEGAL STANDARD ......................................................418

IV. DISCUSSION.............................................................419

A. Defendants Bedrin, Wejkszner, and Robbins are Entitled to Judgment as

a Matter of Law on MFS’s First Amendment Retaliation Claim............419

i. Protected Activity.................................................419

ii. Adverse Action and Motivating Factor...............................419

a. Briefing Memorandum.........................................420

b. Draft Permit..................................................426

iii. Causation........................................................430

B. Defendants are Entitled to Judgment as a Matter of Law on MFS’s Due

Process Claims ......................................................433

i. Procedural Due Process............................................433

a. Fourteenth Amendment Interests...............................434

1. Property Interest..........................................434

2. Liberty Interest...........................................435

b. Due Process of Law...........................................436

ii. Substantive Due Process...........................................438

a. Fourteenth Amendment Interests...............................440

1. Property Interest..........................................440

2. Liberty Interest...........................................441

b. Defendants’ Actions Do Not Shock the Conscience.................441

C. Defendants are Entitled to Judgment as a Matter of Law on MFS’s Equal

Protection Claim.....................................................445

i. Similarly Situated and Intentional Treatment.........................445

ii. Rational Basis.....................................'...............447

D. Defendants are Entitled to Qualified Immunity on all Federal Claims.........448

i. First Amendment Retaliation.......................................449

ii. Procedural and Substantive Due Process.............................451

iii. Equal Protection..................................................452

iv. Questions of Historical Fact........................................453

E. Defendants are Entitled to Judgment as a Matter of Law on MFS’s State Claim for Intentional Interference with Prospective Contractual Relations............................................................455

i. Defendants are Entitled to Sovereign Immunity on the State Claim.....455

ii. Defendants are Entitled to Judgment as a Matter of Law on the State Claim ....................................................458

a. Prospective Contractual Relationship for Sale of MFS Facility.....460

b. Prospective Contract with Armstrong for Continued Sale of Mineral Wool...............................................462

c. Long Term Supply Agreements and Employee Retention and Hiring.....................................................463

F. In the Aternative, a New Trial is Warranted in This Case...................464

V. CONCLUSION............................................................465

I. INTRODUCTION

On February 17, 2010, a ten-day jury trial commenced in this case. On March 3, 2010, the Jury rendered a verdict in favor of Plaintiff Mineral Fiber Services, Inc. (“MFS”) on nearly all of its claims,

The Jury found Defendants Thomas Di-Lazaro, Michael Bedrin, Mark Wejkszner, and Sean Robbins each liable in his individual capacity. Defendants DiLazaro, Bedrin, and Wejkszner were employees of the Pennsylvania Department of Environ

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mental Protection (“PaDEP” or “Department”). Defendant Robbins was an attorney employed by the Pennsylvania Governor’s Office assigned to the PaDEP. The Jury returned a verdict in favor of MFS and against Defendant DiLazaro in the amount of $2,600,000; against Defendant Bedrin in the amount of $1,625,000; against Defendant Wejkszner in the amount of $650,000; and against Defendant Robbins in the amount of $1,625,000. On March 5, 2010, the Court entered judgment in favor of MFS and against each Defendant for the amount awarded by the Jury. (Doc. No. 115.)

Before the Court is Defendants’ Post-Trial Motion Pursuant to Federal Rules of Civil Procedure 50(b) and 59 for Judgment as a Matter of Law, or, in the Alternative, for a New Trial. (Doc. No. 121.)

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On June 30, 2010, MFS filed a Response in Opposition to Defendants’ Posh-Trial Motion. (Doc. No. 166.) On August 13, 2010, Defendants filed a Reply in Support of the Motion. (Doc. No. 169.) Defendants’ Post-Trial Motion is now ripe for adjudication. For the reasons that follow in this Opinion, the Court will grant Defendants’ Posh-Trial Motion for Judgment as a Matter of Law, vacate the judgments entered against Defendants, and dismiss this case in its entirety.

II. STATEMENT OF FACTS

On May 29, 2008, Plaintiff MFS filed the instant action pursuant to 42 U.S.C. § 1983 , alleging a violation of its rights under the First and Fourteenth Amendments to the United States Constitution. The protected rights allegedly violated were the right to petition government for redress of grievances without retaliation (Count I), and the rights guaranteed by the Due Process and Equal Protection Clauses of the Fourteenth Amendment to substantive and procedural due process and to equal treatment under law (Count II). MFS also alleged that its right under Pennsylvania law not to be subjected to intentional interference with prospective contractual relations was violated (Count III). (Doc. No. 1.) Plaintiff brought this suit against each Defendant in their individual capacity only, since an action against them in their official capacity or against the PaDEP is the same as one against the Commonwealth of Pennsylvania, which is immune from suit in federal court under the Eleventh Amendment.

Defendants in this case are Thomas Di-Lazaro, the former Program Manager for the Air Quality Program of the Northeast Regional Office of the PaDEP;

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Mark Wejkszner, the current Air Quality Program Manager of the Northeast Regional Office; Michael Bedrin, Regional Director of the Northeast Regional Office of the PaDEP; and Sean Robbins, the attorney assigned to the Northeast Regional Office of the PaDEP. The PaDEP is an executive agency of the Commonwealth of Pennsylvania responsible for administering and enforcing state environmental laws. While the PaDEP is not a party to this case, the individual Defendants worked for the Pa-DEP-directly or as counsel-during the relevant time period.

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After the Court ruled on numerous Motions

in Limine

(Doc. Nos. 82-89), the case proceeded to trial. Testimony of witnesses and exhibits admitted into evidence at trial are set forth

infra.

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A. Testimony of James Hauff

i.

Mineral Wool Plant

MFS owned a mineral wool manufacturing facility in Bethlehem, Pennsylvania. (James Hauff Trial Testimony [“Hauff’], February 17, 2010 [“2/17/10”], a.m. session [“a.m.”], 57:1-4.) MFS began operating the mineral wool plant in 1988, when it purchased the plant from Bethlehem Steel.

(Id.

at 54:14-18.) James Hauff was employed by MFS from March 20, 1989 until January 10, 2007.

(Id.

at 50:17-23.) Mr. Hauff was initially the quality control manager at MFS. In March 2002, he became the general manager.

(Id.)

At any given time, MFS had between sixty and eighty employees.

(Id.

at 74:2-3.)

Mineral wool is a fibrous material which is produced from several raw ingredients. The primary raw ingredient is called “blast furnace slag,” a byproduct of the manufacture of steel. “Blast furnace slag” is produced during the first stage of steel production.

(Id.

at 57:12-15.) When iron used in the manufacturing process is removed from a furnace, the remaining material is a molten-like lava called “slag.”

(Id.

at 57:25-58:2.) The slag is shipped to

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mineral wool manufacturing facilities. The World Health Organization places mineral wool in category 3, which covers material non-injurious to human beings.

(Id.

at 58:18-59:1.) Mineral wool has a high thermal capacity and is used as an insulating cement. It is often used in ceiling tiles and in panels that coat boilers or hot pipes.

(Id.

at 59:4-11.) On average, MFS produced 50,000 tons of mineral wool a year.

(Id.

at 71:21-25.)

In the United States, there are approximately ten mineral wool manufacturing facilities, several of which Mr. Hauff visited during his tenure at MFS.

(Id.

at 72:10-19.) Unlike other mineral wool plants, MFS had a comprehensive and precise fiberization mechanism, which allowed MFS to produce a clean material that did not have many defects.

(Id.

at 72:23-25.) The slag used in mineral wool production, however, contains levels of sulfur. Under certain conditions, slag has the potential to emit into the air hydrogen sulfide, which has a foul smell similar to a “rotten egg.” (Hauff, February 18, 2010 [“2/18/10”], a.m., 30:2-7.) MFS might emit over twenty tons of hydrogen sulfide during a year of operation.

(Id.

at 62:4-7.)

MFS’s primary customer was Armstrong World Industry, Ceiling Tile Division (“Armstrong”). MFS supplied Armstrong with one-hundred percent of its mineral wool requirements from 1990 until MFS stopped operating its plant in February 2006. (Hauff, 2/17/10, a.m., 76:4-7.) MFS worked closely with Armstrong’s engineers to try to create the highest noise reduction coefficient ceiling tile in the world, which would have been a revolutionary product to improve indoor air and noise quality.

(Id.

at 77:17-78:5.) MFS and Armstrong entered into a long-term purchasing contract. The contract was revised and renewed every five years.

(Id.

at 78:7-15; 79:1-4.) The most recent one was set to expire in April 2007. It was terminated in 2006 when MFS ceased operating the mineral wool plant. (Hauff, 2/18/10, a.m., 10:9-11.) MFS also provided mineral wool to facilities around the world and to local contractors. (Hauff, 2/17/10, p.m. session [“p.m.”], 76:10-24.) Because MFS produced mineral wool for its existing customers while operating its plant at full capacity, it often had to turn away potential customers that sought to purchase its product.

(Id.

at 81:7-25.)

ii.

Notices of Violation and Field Enforcement Order

On November 8, 2001, Becky Easley, an Air Quality Specialist with the PaDEP, issued a Notice of Violation (“NOV”) to MFS. (Plaintiffs Trial Exhibit [“PI. Ex.”] 12.) The NOV stated that on the previous day, the PaDEP’s Emergency Response Team conducted an investigation of the MFS facility after receiving a complaint of an odor coming from the plant. A member of the Emergency Response Team confirmed the presence of a sulfur-type malodor at the complainant’s home, and the team member confirmed that the malo-dor was coming from MFS’s facility.

(Id.

¶ 2.)

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The PaDEP, as a matter of policy, does not disclose the name of a complainant. The NOV provided that by November 30, 2001, MFS was required to submit a written response to the violation, including a list of measures taken to abate the violation.

(Id.

¶ 3.) The November 8, 2001 NOV was the first NOV that MFS and its mineral wool plant had received in thirty years of operation, including years of prior

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ownership by Bethlehem Steel. (Hauff, 2/17/10, a.m„ 87:3-6.)

On November 16, 2001, John Folck, President of MFS, wrote a letter to Ms. Easley about the NOV. (Defendants’ Trial Exhibit [“Def. Ex.”] 7.) In the letter, Mr. Folck explained, “We have found that our emission capture system was not fully effective in removing all the cupola fumes for travel to the baghouse where these malodorous contaminants are normally filtered and removed. We have taken several steps to correct this temporary upset to our emission control systems.”

(Id.)

As noted in Folck’s letter, MFS took steps to stop or reduce gas or vapor leakage from the ductwork around the cupolas of the plant. (Hauff, 2/17/10, a.m., 91:5— 10.) It attempted to run furnaces at a lower carbon level.

(Id.

at 91:1-4.) MFS also conducted a more rigorous cleaning of the baghouse, which included changing part of the software for the cleaning program.

(Id.)

Mr. Hauff testified that even though MFS did not admit to the allegation contained in the November 8, 2001 NOV, it aimed to work with the PaDEP and to be “a good corporate neighbor.”

(Id.

at 92:4-9.) MFS claimed, however, that it encountered several insurmountable safety issues in installing equipment to address the potential malodor problem.

During 2002, Defendant Thomas DiLa-zaro, the Program Manager for the Air Quality Program, corresponded with MFS about the alleged malodor issue described in the NOV. In response, in a letter dated January 13, 2003, Thomas Zagami, counsel for MFS,

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wrote a letter to Defendant DiLazaro. (Def. Ex. 10.) In his letter, Mr. Zagami stated, “MFS remains optimistic that its current mode of operation will result in the elimination of malodors detectable offsite which are attributable to MFS. MFS has and will continue to look at other techniques utilized by other similar facilities to determine if there is any other proven and cost effective technology.”

(Id.

at 2.)

On Friday, January 24, 2003, at 5:05 p.m., the PaDEP issued a Field Enforcement Order (“FEO”) to MFS for failing to undertake sufficient measures addressing the malodor problem at the facility as described in the November 8, 2001 NOV. (PI. Ex. 11.) The FEO directed MFS to complete an attached two-page form describing new equipment that would be used to solve the problem and to submit it by the close of business on the following Monday, January 27, 2003. Defendant DiLazaro signed the FEO as the PaDEP representative. Directions on how to appeal the FEO appear directly above Defendant Di-Lazaro’s name on the FEO. This FEO is the only FEO that MFS ever received. (Hauff, 2/17/10, a.m„ 112:13-17.)

In response to the January 24, 2003 FEO, MFS prepared a letter to the Pa-DEP.

(Id.

at 99:7-9.) The letter, written by Mr. Zagami and dated January 27, 2003, noted, “MFS has not admitted and it has not been determined that MFS is the source of the alleged malodor complaints).” (Def. Ex. 13.) Further, on February 24, 2003, MFS filed an appeal to the Environmental Hearing Board (“EHB”). (PI. Ex. 16.) The EHB is a quasi-judicial agency that adjudicates appeals from “final” administrative actions taken by the PaDEP.

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In the appeal,

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MFS argued that “[t]o the extent any matadors existed, there are multiple emission sources in close proximity to the Plant that are likely causing or contributing to the alleged matadors. [Pa]DEP has failed to investigate these sources as potentially causing the alleged malodorous conditions.” (Pl. Ex. 16 ¶ 7(b).) Mr. Hauff testified that these alternative emission sources included, among others, the Bethlehem Wastewater and Sewage Treatment Plant (“Bethlehem Wastewater”), Bethlehem Landfill, Waylite Plant (“Waylite”), and Connectiv Power Plant (“Connectiv”). (Hauff, 2/17/10, a.m., 101:13-21.)

On April 23, 2003, during a hearing conducted over the telephone regarding MFS’s appeal of the FEO to the EHB, the administrative judge questioned Defendant Robbins, as counsel representing the Pa-DEP, about issuing the FEO at 5:05 p.m. on a Friday and requiring a response by the close of business on the following Monday. The judge stated that such actions evidence the PaDEP’s hostility toward MFS and that such actions appear bad to judges. The judge told Defendant Robbins that the PaDEP should not take similar action in the future. Finally, the judge stated that it appeared that Defendant Di-Lazaro and his staff were acting like “little children.” (Pl. Ex. 4 ¶ 56(o); Pl. Ex. 5 ¶ 56(o).) Ultimately, in 2004, the PaDEP rescinded the FEO, and the EHB dismissed MFS’s appeal of the FEO as moot. (Hauff, 2/17/10, a.m., 104:3-4; Pl. Ex. 5 ¶ 56(s).)

From February 2003 to February 2004, MFS received six more NOVs from the PaDEP for alleged emission of matador. The NOVs are dated February 5, 2003; February 12, 2003; February 13, 2003; March 4, 2003; May 14, 2003;

8

and February 24, 2004. (Pl. Ex. 19.) The NOVs do not state the name or address of the complainant. Each NOV notes the number of complaints the PaDEP received before a member of the Emergency Response Team conducted an investigation.

(Id.)

Although the PaDEP issued these NOVs to MFS, no court or governing body has ever determined that MFS violated matador regulations. (Hauff, 2/17/10, a.m., 105:11-15; Pl. Ex. 5 ¶ 30(b).) The NOVs were not final actions of the PaDEP and were not appealable by MFS. (Pl. Ex. 5 ¶ 30(c).) Despite issuing these NOVs and the FEO, the PaDEP never sought to collect a fine from MFS. (Hauff, 2/18/10, a.m., 22:7-14; Pl. Ex. 5 ¶ 30(c).)

iii.

Mineral Wool NESHAP

MFS, as a mineral wool manufacturer, must comply with state and federal environmental law, including the National Emission Standards for Hazardous Air Pollutants (“NESHAP”), 40 C.F.R. Part 63, Subpart DDD, §§ 63.1175-63.1196. Mineral wool production facilities must also meet a Maximum Achievable Control Technology (“MACT”) Standard, which is part of the overall NESHAP regulation.

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Pursuant to these regulations, MFS was required to demonstrate compliance with mineral wool NESHAP by June 2, 2002, or June 2, 2003, if granted a one-year extension by the United States Environmental Protection Agency (“EPA”). To demonstrate compliance with mineral wool

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NESHAP, MFS was required to conduct a certain stack test to determine the amount of hazardous pollutants it was emitting.

Mr. Hauff testified that during the drafting stage of the mineral wool NESH-AP regulations, MFS representatives had met with EPA employees and explained that its mineral wool plant was uniquely configured and needed special consideration in order to comply with the proposed regulations. (Hauff, 2/17/10, p.m., SEMIS.) The EPA responded to MFS’s request by adding a paragraph to the preamble of the regulation which stated that “any plant that was configured differently than as described in the act could apply for either a different standard or a different test method.”

(Id.

at 32:7-10.)

On July 31, 2001, MFS representatives sent a request to Defendant DiLazaro to be considered for either a different standard or a different test method in order to demonstrate compliance with NESHAP.

(Id.

at 35:18-24; PL Ex. 31.) Defendant DiLazaro responded by explaining that the request would have to be made to the EPA, rather than to the PaDEP, because as a state agency, the PaDEP did not have authority to grant the request of MFS.

On April 9, 2003, the EPA denied MFS’s request for use of an alternative standard under NESHAP. (Pl. Ex. 32.) The EPA’s letter stated, “[s]inee alternative testing options exist that will enable MFS to demonstrate compliance with the current PM emission limits under Subpart DDD, EPA is not willing to amend the current Subpart DDD standards.”

(Id.)

Mr. Hauff maintained that in the letter the EPA was merely denying MFS’s request for an alternate test standard, but that MFS was permitted to use an alternate test method. (Hauff, 2/17/10, p.m., 37:6-21, 40:9-12.) Defendant DiLazaro confirmed this interpretation. (DiLazaro, 2/22/10, p.m., 76-78.)

On April 15, 2003, one week after the EPA denied MFS’s request for an alternative test standard, Ronald Mordosky, District Supervisor of the Air Quality Program of the PaDEP, issued a NOV to MFS for failure to comply with mineral wool NESHAP. (Pl. Ex. 33.) Mr. Mordo-sky wrote, “My file review indicates that there is no record of MFS ever conducting the performance testing and implementing all of the other measures required by this regulation. Since MFS has not demonstrated compliance with this regulation, you are in violation of 25 Pa.Code § 124.3

and

40 CFR part 63 § 63.1180(a)(1)”

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(emphasis in original). MFS did not comply with the testing and other requirements of mineral wool NESHAP to the date of plant closure in February 2006.

iv.

Defendant DiLazaro’s Public Comments

After MFS received the January 24, 2003 FEO for failure to address the malo-dor problem set forth in the November 8, 2001 NOV, MFS representatives sent a series of letters to government officials describing mistreatment of the corporation by the PaDEP. (Pl. Exs. 13, 14.) There

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after, on February 21, 2003, Pennsylvania State Representative T.J. Rooney sent a letter on MFS’s behalf to Kathleen McGinty, Acting Secretary of the PaDEP, urging her to review the relationship between MFS and the PaDEP. Representative Rooney stated that the “actions being taken against MFS, by [the Pa]DEP, are not warranted and are grossly disproportionate to the facts and circumstances presented here.” (PL Ex. 15 at 3.) MFS had supplied Representative Rooney with the information contained in his letter to Secretary McGinty. (Hauff, 2/18/10, p.m., 7:18.)

Mr. Hauff testified that during this same period in early 2003, Defendant Di-Lazaro made numerous public comments concerning MFS, including that MFS was a known air polluter, a known nuisance, the source of odors in the Lower Saucon region, and an emitter of benzene, which was a toxic, cancer-causing agent. (Hauff, 2/17/10, p.m., 11:7-11.) Mr. Hauff explained that MFS’s customers, including Armstrong, expressed concern after Defendant DiLazaro made these comments because MFS previously had a favorable reputation in the community.

(Id.

at 11:14-22.) Mr. Hauff was not present when Defendant DiLazaro made these comments. He read them in a newspaper article reporting on a Lower Saucon Town Hall meeting. (Hauff, 2/18/10, a.m., 9:10-12.)

At some point in the fall of 2004, Mr. Hauff met with Defendant DiLazaro at the PaDEP office in Bethlehem, Pennsylvania. At the meeting, Mr. Hauff and Defendant DiLazaro discussed Defendant DiLazaro’s public comments about MFS and MFS’s subsequent letters to state representatives. Mr. Hauff testified that Defendant DiLazaro was displeased with being disciplined by his superiors, presumably in response to the letters from elected officials and was “angry” and “ticked off’ because “[MFS] had gone over his head.” Mr. Hauff described Defendant DiLazaro as “red in the face, very angry-looking ... he pounded his fist on the table, said he did not appreciate what we had done to him.” (Hauff, 2/17/10, p.m., at 13:16-14:1.)

v.

Other Facilities Near MFS

Mr. Hauff maintained that the PaDEP specifically targeted MFS for alleged ma-lodor violations even though other potential emitters of malodor operated in the area. Other facilities in the vicinity of MFS are also subject to the PaDEP’s ma-lodor regulations. One facility, Bethlehem Wastewater, is publicly owned and located approximately three-quarters of a mile northwest of MFS’s mineral wool plant.

(Id.

at 14:9-13.) At the wastewater facility, gases are released during the anaerobic bacterial decomposition process. Mr. Hauff testified that these gases include, among other things, hydrogen sulfide, carbonyl sulfide, carbon disulfide, methane, and ammonia.

(Id.

at 15:12-24.) These gases commonly have a smell similar to a rotten egg.

(Id.

at 16:3.) In a 2002 Inspection Report of Bethlehem Wastewater by the PaDEP, the inspector noted that an oxidizing chemical with the name potassium permanganate is added at the rotary and belt-press areas to control odors.

(Id.

at 16:20-22; PL Ex. 25 at 2.) Similarly, in a 2006 Inspection Report of Bethlehem Wastewater, the inspector noted that a chemical named magnesium hydroxide is added at a certain point in the treatment process for odor control.

(Id.

at 18:10-12; PL Ex. 26 at 2.)

Notwithstanding the Inspection Report issued as early as 2002, which stated that Bethlehem Wastewater used potassium permanganate to control odors, a January 5, 2007 article in the Morning Call Newspaper stated that Bethlehem Wastewater had only recently begun implementing the deodorizing chemical agent process. The article read that for several years, “a drive

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past Bethlehem’s wastewater treatment plant evoked a reflexive gasp from the odor hanging in the air.” (PI. Ex. 30.) At no point before Bethlehem Wastewater began using deodorizing chemicals, however, had it received a NOV from the PaDEP for emitting malodor. (Hauff, 2/17/10, p.m., 22:12.)

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Another local plant, Waylite, was located within one mile of MFS’s mineral wool plant. Waylite mined blast furnace slag, which it supplied to MFS and other customers.

(Id.

at 23:6-14.) Like Bethlehem Wastewater, Waylite never received a NOV from the PaDEP for emitting malo-dor.

(Id.

at 24:15.)

Also within one mile of MFS was the Bethlehem Landfill. On April 10, 2003, representatives of the PaDEP met with representatives of Bethlehem Landfill “to discuss proactive measures being taken by [Bethlehem Landfill] to control possible malodor sources during the upcoming summer months.” (PI. Ex. 27.) On March 17, 2004, representatives of the PaDEP held a similar meeting with Bethlehem Landfill personnel to discuss procedures to “alleviate potential malodors during the upcoming summer months.” (PI. Ex. 28.) Like Bethlehem Wastewater and Waylite, Bethlehem Landfill never received a NOV from the PaDEP for emitting malodor. (Hauff, 2/17/10, p.m., 27:9.)

vi.

January 2006 Deficiency Letter

If an operating plant in Pennsylvania emits more than ten tons of a single “hazardous air pollutant” in one year, it is considered a “major source” edifice and therefore a “Title V facility.” A Title V facility is required to obtain a Title V operating permit from the PaDEP under 25 Pa.Code § 121.1. The MFS plant emitted as much as 750 tons of one hazardous air pollutant, carbonyl sulfide, in one year. Consequently, in order to operate the facility, MFS was required under the federal Clean Air Act and Pennsylvania law to obtain a Title V operating permit from the PaDEP.

An application for renewal of an existing Title V permit must be submitted at least six months, and not more than eighteen months, before the expiration date of the permit.

See

25 Pa.Code § 127.446(e). If an application to renew a Title V permit is duly filed, but the permit is not renewed prior to its expiration date, the party seeking renewal has the right to challenge the PaDEP’s failure to renew the permit by filing an appeal to the EHB.

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In the alternative, a permit renewal applicant may continue to operate under its existing Title V permit while its renewal application is pending, pursuant to the “permit shield” provision in its Title V permit.

13

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In April 2003, MFS filed a renewal application for its Title V Operating Permit. (Hauff, 2/17/10, p.m., 75:24-25.) On June 19, 2003, Chinu Patel of the PaDEP sent a letter to Mr. Hauff regarding the Title V Permit application. (Def. Ex. 29.) In the letter, Mr. Patel noted as follows:

Given the large number of Title V applications received, it may be as much as three years before all permits are finally issued.

This letter authorizes you to continue to operate your facility pending issuance of a facility operating permit, provided: all fees have been paid; all sources are in compliance with the Air Pollution Control Act, the Clean Air Act and all applicable regulations, or are on a Department approved compliance schedule; and, the conditions of all outstanding operating permits are met.

(Id.)

In other words, MFS was permitted to and did operate under a “permit shield” from June 2003 until February 2006, when MFS made the decision to shut down its mineral wool plant. At no point did the PaDEP revoke the permit shield. (Hauff, 2/18/10, a.m., 87:8-17.) Nevertheless, Mr. Hauff testified that operating under a permit shield, rather than having a renewed Title V permit, created problems for the plant and MFS. As Mr. Hauff explained:

It was totally unpredictable when it would either be rescinded or it would be approved. There was no assurance that you’d continue to operate from day to day or for how long. At any point, the way we had been treated in the past, they could have decided to just pull the permit because that was their right. They could deny our application for a new permit, and that would have been the end of it. But we couldn’t enter any business arrangements of any sort at that time, any long term.

(Hauff, 2/17/10, p.m., 76:15-23.)

Eventually, on January 11, 2006, Defendant DiLazaro sent a letter to Mr. Hauff explaining that several critical deficiencies existed in MFS’s Title V renewal application (“Deficiency Letter”). (Pl. Ex. 88.) In the letter, Defendant DiLazaro informed Mr. Hauff that the PaDEP had adopted NESHAP standards and incorporated them into the PaDEP’s Air Resources Regulations, 25 Pa.Code § 121.1

et seq., supra.

Defendant DiLazaro listed the following deficiencies with MFS’s facility:

1) MFS has failed to install monitoring systems and conduct required performance testing at the outlet of the cupolas as required by 40 C.F.R. § 63.1180 , in accordance with 40 C.F.R. §§ 63 .[1]188 and 63.[1]189.

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2) MFS has failed to demonstrate compliance with the emission limits specified in 40 C.F.R. § 6S.1178.

15

3) MFS has failed to install, adjust and continually operate a bag leak detection system for each fabric filter as required in 40 C.F.R. § 63.1181 .

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4)MFS has failed to submit an operations, maintenance, and monitoring plan as required by 40 C.F.R. § 63.1187 .

17

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5) MFS has failed to submit reports, including a performance test report; startup, shutdown and malfunction plans and reports; an operations, maintenance and monitoring plan; and necessary semiannual reports as required by 40 C.F.R. §§ 68.1193 and 63.10.

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(PL Ex. 88. at 1.)

Citing the Air Resources Regulations, Defendant DiLazaro advised MFS that the

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PaDEP:

[W]ill refuse to renew an operating permit to a source that is operating in violation of the Clean Air Act or the regulations promulgated thereunder that are applicable to the Source.... [T]he [PaDEP] has determined that MFS is currently operating out of compliance with NESHAP regulations. Unless compliance is achieved, the [Pa-DEP] cannot renew Title V Operating Permit # 48-00020.

It is also important to note that Section 412 of the Department’s Air Resources Regulations, 25 Pa.Code § 127.412,

19

provides that if the Department finds that a permit applicant has an existing or continuing violation or lacks the intention or ability to comply with the Air Pollution Control Act or the rules and regulations of the Department, and the Department is unable to resolve the violations or lack of intention or ability to comply informally, then the Department will place the violation, and may place the lack of intention or ability to comply, on the compliance docket. An operating permit will not be renewed where the applicant has a violation or lack of intention or ability to comply that is listed on the compliance docket.

As you know, the Department has been attempting to informally resolve violations at MFS for several years. During numerous meetings and discussions with MFS, some of which have involved the U.S. Environmental Protection Agency, MFS has stated that it lacks the ability to comply with the requirements in the NESHAP regulations because the configuration of existing equipment at the facility will not allow for required performance testing. Pursuant to 25 Pa. Code § 127.412 , a lack of ability to comply with the NESHAP regulations is a basis for not renewing a Title V Permit.

*400

Furthermore, Section 422 of the Department’s Air Resources Regulations, 25 Pa.Code § 127.422

20

provides that the Department will refuse to issue an operating permit where, in the design of the source, provisions are not made for adequate verification of compliance, including source testing. In a situation like this where provisions have not been made to allow for required NESHAP testing and verification of compliance with NESHAP limits an operating permit cannot be issued or renewed.

The Department also has concerns that MFS lacks the intention to bring the facility into compliance. This concern is based on the fact that required testing was to be completed, at the latest, by June 2, 2003, and has still not been performed. In addition, on July 13, 2005, the Department asked MFS [to] revise a plan approval application that it submitted to the Department on January 29, 2004 in accordance with the decision in

State of New York, et al. v. USEPA, et al.,

413 F.3d 3 (D.C.Cir. June 24, 2005).

21

The Department renewed that request in a letter dated August 15, 2005 to Paul Bruder, Esquire.

22

Since that time the Department has not received any information from MFS regarding a revised plan approval application and has seen no additional movement on the part of MFS to control odors from the facility or to reconfigure equipment so that NESHAP testing can be performed.

(PL Ex. 88 at 2.)

On February 9, 2006, Mr. Hauff responded to Defendant DiLazaro’s letter. (Pl. Ex. 89.) Mr. Hauff attempted to explain MFS’s position on the NESHAP noncompliance issue “and also to fill in some of the gaps that [DiLazaro] left in his letter.” (Hauff, 2/17/10, p.m., 60:12-16.) In summary, Mr. Hauff addressed the critical deficiencies of MFS’s Title Y Permit application highlighted by Defendant Di-Lazaro and explained:

The problem with conducting compliance testing is not the lack of test ports but the way in which Subpart DDD is written and the configuration of the MFS plant. PA DEP is well aware of these issues. The PA DEP cannot reasonably expect MFS to spend in excess of $1.0 million to reconfigure the plant air pollution controls to make our plant “fit” EPA’s Subpart DDD standard without reducing emissions at all, simply to attempt to perform a compliance test safely and effectively.

(PL Ex. 89 at 4.)

On February 26, 2006, one week after Mr. Hauff sent this letter to Defendant

*401

DiLazaro, MFS stopped operating the mineral wool plant. (Hauff, 2/17/10, p.m., 60:20-21.) When asked why MFS ceased operations, Mr. Hauff replied, “Well, because of the uncertainty of receiving our operating permit. We were coming up on certain contractual limitations or points of contract with not only our customers but also some of our vendors, and we had to have assurance that we were going to be able to supply them beyond those points of the contract.”

{Id.

at 61:9-16.)

After the mineral wool plant stopped operating, MFS was approached by potential buyers of the plant. The first potential buyer was Armstrong, MFS’s principal client.

{Id.

at 64:16-20.) Approximately fourteen Armstrong representatives visited the plant, completed a walkthrough, took pictures, and received a tutorial on the operation.

{Id.

at 64:22-65:3.)

The second potential buyer was Ther-mafiber, which was the largest owner of mineral fiber-producing facilities in the United States.

{Id.

at 65:4-6.) After MFS purchased several truckloads of mineral wool from Thermafiber, the company inquired if MFS’s mineral wool plant was for sale. Mr. Hauff met with Thermafi-ber’s Chief Executive Officer in Bethlehem to discuss the possibility of Thermafiber purchasing the plant.

{Id.

at 66:10-25.) Thermafiber remained interested in purchasing the mineral wool plant while MFS operated under the permit shield, but, according to Mr. Hauff, Thermafiber desired “assurance that [the] Title V operating permit would be issued and be usable. They didn’t want to put a lot of money into a plant that they couldn’t operate.”

{Id.

at 87:23-88:1.)

vii.

Consent Decree Between EPA and MFS

In 2005 and 2006, when MFS was corresponding with PaDEP employees, MFS was also negotiating with the EPA, a federal agency, about regulatory and compliance issues. The EPA threatened fines against MFS at a rate of $30,000 a day for non-compliance with NESHAP from June 2, 2002 to June 2, 2003, and fines at a rate of $34,000 a day from December 2005 onward for the same reason.

On September 20, 2005, Mr. Zagami wrote a letter to Chris Day, the Assistant U.S. Attorney handling the MFS matter with the EPA. (Def. Ex. 51.) In the letter, Mr. Zagami explained, “I actually advised you that, in light of EPA’s actions, EPA is leaving MFS with no alternative except to shut down.”

{Id.

at 2.)

On December 20, 2005, the EPA filed a lawsuit against MFS in federal court in the Eastern District of Pennsylvania alleging non-compliance with NESHAP. In August 2006, a resolution was reached between the EPA and MFS. On August 10, 2006, Mr. Hauff sent Defendant DiLazaro a supplemental response to the January 11, 2006 Deficiency Letter, summarizing the conditions of the settlement between MFS and the EPA. (PL Ex. 36.) Mr. Hauff advised Defendant DiLazaro that an agreement had been reached between MFS and the EPA concerning MFS’s request for an alternative NESHAP test method. (Hauff, 2/17/10, p.m., 67:17-18.) The letter reads:

As the United States Environmental Protection Agency (“EPA”) has advised the Pennsylvania Department of Environmental Protection (“PaDEP”), MFS has negotiated an agreement in principle with EPA to resolve the pending litigation involving MFS’s alleged failure to conduct compliance testing in the manner specified by the federal NESHAP (40 C.F.R. Part 63) Subpart DDD (“MACT”). The agreement in principle contemplates that, due to MFS’s unique configuration, MFS will implement an agreed upon alternative test method to demonstrate compliance with MACT

*402

within six months of re-starting its manufacturing operations.

(PI. Ex. 36 at 1.)

On March 9, 2007, the EPA and MFS filed with the court a notice of the Consent Decree settling the litigation.

23

(PI. Ex. 34.) As stated in the Consent Decree:

The express purpose of the Parties entering into this Consent Decree is to further the objectives of the Clean Air Act and the regulations promulgated thereunder, to ensure Defendant’s compliance with the requirements of the mineral wool NESHAP at this Facility including the opportunity for Defendant to ascertain compliance using the Alternative Test Method as provided in this Decree below ....

(PI. Ex. 34 ¶ 5.) The Consent Decree authorized MFS to use an alternative test method to demonstrate compliance with mineral wool NESHAP. The parties agreed that MFS would pay a civil penalty in the amount of $109,000 to the United States for violations that were described in the Complaint.

(Id.

¶ 36.)

The Consent Decree expressly stated that it was not to serve as a Title V Permit nor did it relieve MFS of the obligation to comply with other statutes or regulations. The Consent Decree provided as follows:

70. This Consent Decree is not and shall not be construed as a permit issued pursuant to Subchapter V of the Clean Air Act [Title V Permit], nor as a modification of any existing permit so issued, nor shall it in any way relieve Defendant of its obligations to comply with permits, if any, otherwise required for any portion of its Facility, and with any other applicable federal, state and local law or regulation. This Consent Decree shall not be interpreted to excuse Defendant from any obligation to comply with any new permit, or modification of existing permits, in accordance with applicable federal, state and local laws and regulations.

71. Nothing herein shall be construed as relieving Defendant of the duty to comply with the Clean Air Act and its implementing regulations, and all applicable permits issued under that act and regulations.

(Id.

¶¶ 70-71.)

On March 23, 2007, over one year after MFS ceased operating its plant, the United States published notice of the proposed Consent Decree in the Federal Register and solicited comments for a period of thirty days pursuant to 28 C.F.R. § 50.7 .

24

In the Motion for Entry of Consent (PI.

*403

Ex. 35), the United States explained that the PaDEP filed a comment requesting that the United States consider a number of specific modifications to the terms of the proposed Consent Decree. (PI. Ex. 35 ¶ 7(1).) Moreover, the United States noted that “after subsequent discussions with EPA, [PaDEP] ultimately agreed to entry of the Decree.... The United States notes that EPA had invited [PaDEP] to consider joining EPA in the case but the [PaDEP] declined.”

(Id.)

Citing paragraph 70 of the Consent Decree,

supra,

the United States emphasized that the Decree provisions “do not provide an alternative from or substitute for any of the required state permits or approvals.”

(Id.

¶ 7(5).)

In its comment to the Consent Decree, the PaDEP expressed concern regarding the ramifications of MFS’s failure to demonstrate compliance with mineral wool NESHAP and the Decree’s effect on the PaDEP’s permitting authority. The Pa-DEP suggested that the Decree should require that within forty-eight hours of failing the compliance test, MFS must shut down the facility for initial failure to demonstrate compliance with mineral wool NESHAP. The United States declined to add the “shutdown” provision to the Consent Decree.

(Id.

¶ 7(8).) However, the United States once again noted:

The Decree provision for the compliance plan, or the process outlined in the Decree for development and delivery of the same, does not usurp any of PADEP’s authority reserved in Paragraph 70 of the proposed Decree, to take any actions within its authority regarding MFS’s Title V operating permit.

PADEP raises the issue that resolution of alleged malodor issues at the Facility are not addressed in the Decree. The United States agrees with PADEP that the state regulations regarding regulation of malodors are beyond the scope of relief requested in the complaint filed in this case to enforce the federal mineral wool NESHAP requirements. EPA has recommended that PADEP contact MFS directly and work out those concerns.

(Id.)

On August 14, 2007, the Consent Decree was approved and entered by the court.

viii.

Briefing Memorandum

On December 17, 2007, representatives from MFS and the PaDEP, including Defendant Bedrin, Regional Director of the PaDEP, and Defendant Robbins, as counsel to the PaDEP, attended a meeting in Secretary McGinty’s office to discuss the renewal of MFS’s Title V Operating Permit. The meeting with the Secretary had been requested by MFS. To prepare the Secretary for this meeting, Defendant Robbins put together a Briefing Memorandum. (PL Ex. 6.) In the Memorandum, Defendant Robbins described MFS’s failure to perform the testing required by mineral wool NESHAP and MFS’s failure to address the technical deficiencies at the mineral wool plant delineated in Defendant DiLazaro’s January 11, 2006 Deficiency Letter to Mr. Hauff. Defendant Robbins recited MFS’s “history of malodor problems,” including the NOVs and the FEO issued by the PaDEP. The Memorandum included a summary of the interaction between MFS and the EPA over the years and a reference to the

State of New York

decision, which affected MFS’s plan approval application, as noted

supra

in footnote 21.

Defendant Robbins attached a number of documents to the Briefing Memorandum. He included nearly a dozen letters from PaDEP representatives, Thomas Za-gami, counsel for MFS, and Assistant U.S. Attorney Chris Day, and the letter from State Representative Rooney urging Pa-

*404

DEP Secretary McGinty to review the MFS case. In addition, Defendant Robbins attached three newspaper articles discussing fraud allegations against certain MFS employees.

Defendant Robbins recommended to the Secretary in the Briefing Memorandum that the PaDEP should not issue a Title V operating permit to MFS at that time. In addition, Defendant Robbins suggested that “[b]y issuing a permit to a facility that has not demonstrated an ability to comply, the Department opens itself to an appeal by a third party, which could very well be Lower Saucon Township in this case, or a group of interested citizens.”

(Id.

at 6.) Nevertheless, Defendant Robbins wrote, “Renewal of the permit can and should take place after a demonstration of compliance with applicable requirements.”

(Id.)

ix.

January 2008 Draft Permit

Shortly after the December 17, 2007 meeting with Secretary McGinty, the Pa-DEP sent a Draft Title V Operating Permit (“Draft Permit”) to MFS. (PI. Ex. 8.) The Draft Permit is forty-five pages long and each page contains the word “PROPOSED” in bold-face capital letters in the bottom-right corner. At least ten pages feature the phrase “ * * *Permit Shield In Effect* * * ” in bold-face type surrounded by asterisks.

(Id.

at 30-39.) The Draft Permit contained ninety-two conditions on which the issuance of the Title V Permit would be based.

25

Mr. Hauff testified that ninety of the ninety-two conditions “seemed to be pretty straightforward and standard.” (Hauff, 2/17/10, p.m., 87:8-9.) However, MFS vehemently contested two conditions in the Draft Permit. Mr. Hauff testified that these conditions were a “poison pill.” (Hauff, 2/18/10, a.m., 109:6-11.) The first contested condition is number 27. The Draft Permit notes that the authority for condition 27 is derived from the Air Resources Regulations,

supra,

and the Consent Decree entered into by MFS and the EPA,

supra.

Condition 27 provided, in relevant part, as follows:

(l)

If EPA determines that the initial performance test results fail to demonstrate compliance with the emission limitations set for[th] in 40 C.F.R. § 63.1178 , MFS, Inc. will cease operation of cupolas at the facility within 24 hours of notification of disapproval. If MFS, Inc. wishes to restart cupolas they shall first submit a plan (“Compliance Plan”) to EPA and the Department which describes those measures MFS, Inc. shall undertake to achieve compliance with the mineral wool NESHAP, which may include but are not limited to upgrading or replacing the existing control device(s), along with an implementation schedule for the commencement and completion of each significant construction and/or facility milestone. Operations may not begin until the Compli-

*405

anee Plan has been approved by EPA and the Department and necessary approvals or permits are obtained by MFS, Inc. including, but not limited to, Air Quality Plan Approvals.

(PL Ex. 8 at 22.)

The second contested condition is number 28. The Draft Permit notes that the authority for condition 28 is also derived from the Air Resources Regulations, 25 Pa.Code § 127.512, entitled “Operating Permit Terms and Conditions.”

26

Condition 28 provided as follows:

The owner or operator shall cease operations of this facility upon notification by the Department that violation of Section C, Condition # 003

27

has occurred. Within 30 days of being notified, the permitte [sic] shall submit a plan to abate the malodors to the Department for approval. Resumption of operation at the facility is contingent upon receipt of approval from the Department of the proposed odor abatement plan.

(Pl. Ex. 8 at 22.) MFS objected to conditions 27 and 28 in a letter to the PaDEP. However, as Mr. Hauff testified, MFS was unable to appeal the Draft Permit to the Environmental Hearing Board. (Hauff, 2/17/10, p.m., 88:20-22.) MFS would have been entitled to appeal the terms of the Draft Permit if the Permit was intended to be a final decision by the PaDEP.

28

The Draft Permit, however, was merely a proposal and was not intended to be a final decision. Its terms were still subject to negotiation.

On January 16, 2009, over six months after filing the instant lawsuit, MFS received another Draft Title V Operating Permit from the PaDEP (“Second Draft Permit”). (PL Ex. 9.) This Second Draft Permit did not contain the closure requirement that was set forth in conditions 27 and 28 of the Draft Permit.

B. Testimony of Becky Easley

Becky Easley has been an employee of the PaDEP since August 1999. (Becky Easley Trial Testimony [“Easley”], February 22, 2010 [“2/22/10”], p.m., 3:20-23.) At the time of her testimony, Ms. Easley was an Air Quality Specialist, responsible for inspecting facilities that have air quality permits in her designated geographic work area.

(Id.

at 4:15-18.) The MFS mineral wool plant was located within Ms. Easley’s work area. Her duties included investigating a complaint of an odor and determining if the odor is a “malodor,” which is

*406

an odor that is objectionable to the public.

(Id.

at 15:3-7.) Ms. Easley visited MFS’s facility approximately twenty-two times in response to complaints about odors. She confirmed malodors being emitted from MFS four or five times.

(Id.

at 15:17-25.) The other seventeen or eighteen times, Ms. Easley told the complainant that the odor was not strong or persistent enough to be considered a “malodor.”

(Id.

at 16:1-5.)

29

Ms. Easley drafted and issued the November 8, 2001 NOV sent to MFS for a confirmed malodor. (PI. Ex. 12; Def. Ex. 6.) Ms. Easley and her supervisor, Ronald Mordosky, decided to issue the NOV to MFS after Eric Garner of the PaDEP completed an investigation following a citizen complaint. (Easley, 2/22/10, p.m., 6:13-17; 25:5-11.) The four Defendants in this case were not involved with the issuance of the November 8, 2001 NOV.

(Id.

at 6:25-7:11.)

On February 5, 2003, Ms. Easley drafted and issued another NOV to MFS for confirmed malodor.

(Id.

at 8:16-23.) Again, Ms. Easley and Mr. Mordosky decided to issue this NOV. The four Defendants in this case were not involved in issuing the February 5, 2003 NOV.

(Id.

at 9:1-7.) To determine the source of the odor, Ms. Easley visited the homes of two complainants, spoke with them and determined that the odor was strong and persistent enough to be classified as a malodor. She then drove down and upwind from the facilities in the area to confirm the source of the malodor.

(Id.

at 14:1-9.)

Bethlehem Wastewater is another facility located within Ms. Easley’s designated work area. On March 6, 2002, Ms. Easley filed an Inspection Report after visiting the wastewater plant. (PI. Ex. 25.) Ms. Easley explained that Mark Miller, a Water Quality Specialist with the PaDEP, accompanied her on the Bethlehem Wastewater inspection. (Easley, 2/22/10, p.m., 9:17-19.) Mr. Miller was present for the inspection because the Water Quality Program division of the PaDEP, to which he was assigned, was the “lead program” covering Bethlehem Wastewa-ter. She testified that the Water Quality Program “would be responsible for trying to correct [major problems].”

(Id.

at 9:20-24.) If Ms. Easley had discovered a malodor violation at the Bethlehem Wastewater facility during her inspection, the Water Quality Program would be responsible for issuing a NOV.

(Id.

at 10:2.) Ms. Easley testified that Defendants in this case did not work for the Water Quality Program, and had no responsibility for issuing NOVs to Bethlehem Waste-water.

(Id.

at 10:3-8.)

Ms. Easley is also familiar with odors emitted from Bethlehem Landfill.

(Id.

at 12:4-6.) However, she is not responsible for issuing NOVs to Bethlehem Landfill because the PaDEP program covering Bethlehem Landfill is the Solid Waste Program. Defendants did not work for the Solid Waste Program and had no responsibility for issuing NOVs to Bethlehem Landfill.

(Id.

at 12:11-18.)

On September 7, 2006, Ms. Easley prepared a memorandum for Defendant DiLa-zaro featuring the subject line “MFS Hydrogen Sulfide Data.” (Def. Ex. 59.) The memorandum has three introductory paragraphs and six pages of “MFS Hydrogen Sulfide Analyzer Monthly Data” covering the period from March 2004 to February

*407

2006. Ms. Easley testified that Defendant DiLazaro asked her to write a memo on the data collected from an air sampler. (Easley, 2/22/10, p.m., 39:6-7.)

The introduction to the memorandum provides, in part:

The Department installed a Hydrogen Sulfide monitoring station at the Lower Saucon Sportsmen Association. This monitor was installed in response to odor complaints made against MFS, Inc., located in the City of Bethlehem, Northampton County. The monitoring station is located approximately one half mile to the north east of the MFS, Inc. facility. Parameters measured on an hourly basis at the monitoring station include: ambient temperature, hydrogen sulfide concentration, solar wind speed, vector wind direction, and vector wind speed.

(Def. Ex. 59 at 1.)

The data featured in the memorandum reflects the amount of hydrogen sulfide in the ambient air in parts per billion. The term “ambient air” refers to general outside air and is not specific to any one location or facility. (Easley, 2/22/10, p.m., 37:5-10.) In other words, an inspector cannot read the data obtained from an ambient air monitor and pinpoint the source of the hydrogen sulfide.

(Id.

at 37:18-21.) Ms. Easley testified that data collected by the ambient air monitor did not serve as a basis to establish a malodor violation.

(Id.

at 27:22-25.)

Ms. Easley’s September 7, 2006 memorandum notes that the most abundant concentration of hydrogen sulfide in the ambient air occurred on March 1, 2004, at thirty parts per billion coming from a 256 degree wind vector direction. The memorandum further states, “MFS, Inc. ceased production on February 17, 2006. The monitoring station data shows that no readings of greater than 2 parts per billion hydrogen sulfide were recorded after this date.” (Def. Ex. 59 at 1.)

At trial, MFS confronted Ms. Easley with ambient air monitoring data for January 2, 2009, nearly three years after MFS ceased operation. The reading displayed that at 10:00 a.m. on January 2, 2009, the ambient air monitor showed forty-five parts per billion of hydrogen sulfide coming from a 257 degree wind vector direction (Easley, 2/22/10, p.m., 40:17-22.), an amount larger than readings obtained when MFS was operating its plant and from a similar direction.

C. Testimony of Defendant Thomas DiLazaro

Defendant DiLazaro is a former employee of the PaDEP. As noted above, in June 2007, he retired after working approximately thirty-five years at the PaDEP and the Pennsylvania Department of Environmental Resources. In 1992, Defendant Di-Lazaro became Air Quality Program Manager, and he remained in that position until his retirement in 2007. (Thomas Di-Lazaro Trial Testimony [“DiLazaro”], 2/22/10, p.m., 48:10-23.) He testified that during his entire tenure at the PaDEP, he was never reprimanded.

(Id.

at 52:5-7.) As Air Quality Program Manager, Defendant DiLazaro was in charge of the air program in the Northeast Region, which covered eleven counties in northeast Pennsylvania. His office was comprised of three groups, one of which was called the Title V group.

(Id.

at 49:5-8; 49:22-25.) The Title V group was responsible for issuing Title V operating permits in accordance with Title V of the federal Clean Air Act of 1990.

Defendant DiLazaro managed a staff of approximately thirty employees.

(Id.

at 49:9.) Directly below him was the operations chief who handled complaints and reviewed inspections. Below the opera

*408

tions chief were supervisors and below the supervisors were staff members who conducted actual inspections. Included in the Title V group were engineers who reviewed operating permits and made decisions on pending Title V applications.

(Id.

at 51:4-7.) Defendant Wejkszner, who succeeded Defendant DiLazaro as Air Quality Program Manager, was in charge of the engineering services section of the Title V group.

(Id.

at 51:12.)

i.

Title V Permits Generally

Defendant DiLazaro provided a comprehensive summary of the process of obtaining a Title V Permit. First, a company must submit an application. Once the Pa-DEP deems the application complete, a technical review is commenced and a draft permit is developed. “That draft permit is then sent to the company for review and asked for comments. And then there’s negotiations back and forth on the terms and the conditions in the permit.”

(Id.

at 55:20-22.) Once the PaDEP and the company have agreed on the terms of the draft permit, it is forwarded to the EPA for further review. Defendant DiLazaro explained that the draft permit is also published in a local newspaper for three consecutive days to ensure that the public is aware of the pending Title V permit application. Local public agencies and authorities in any neighboring state (in this case, New Jersey) also have the opportunity to comment on the Title V application and to request a hearing.

(Id.

at 56:1-13.) The company, the PaDEP, the EPA, the public, and neighboring states have to be in agreement before a Title V Permit is issued. During this lengthy process, companies are entitled to continue operating under a “permit shield.” (Id. at 57:12-14.)

On October 7, 1998, Defendant DiLazaro issued to MFS a Title V Operating Permit. (Def. Ex. 2.) The Permit provided, in part:

This permit is issued for a fixed term of 5 years. The terms and conditions of the expired permit shall automatically continue pending issuance of a new Title V permit, provided the permittee has submitted a timely and complete application and paid applicable fees required under 25 Pa. Code Chapter 127, Sub-chapter 1 and the Department is unable, through no fault of the permittee, to issue or deny a new permit before the expiration of the previous permit.

(Def. Ex. 2 at 6.)

Defendant DiLazaro testified that in 2003 many Title V renewal applications were submitted. At that time, approximately one-hundred facilities in the Northeast Region required Title V operating permits. Only five PaDEP employees were assigned to review renewal applications. (DiLazaro, 2/22/10, p.m., 53:23-54:1.) In 2003, MFS submitted a timely and complete Title V renewal application, but the PaDEP was unable to issue or deny a new permit before the expiration of MFS’s existing permit. Consequently, MFS was entitled to continue to operate under its 1998 Title V Permit in accordance with the “permit shield” provision. (Def. Ex. 29.)

ii.

Field Enforcement Order

On Friday, January 24, 2003, Defendant DiLazaro met with his supervisor, William McDonnell, to discuss the MFS case. (Di-Lazaro, 2/22/10, p.m., 67:10-15.) Defendant DiLazaro testified that Mr. McDonnell directed him to immediately issue an order to MFS mandating its compliance with malodor regulations.

(Id.

at 69:4.) After the meeting with Mr. McDonnell, Defendant DiLazaro and Mr. Mordosky drafted a FEO, and later reviewed it with Mr. McDonnell and Defendant Robbins, the attorney for the PaDEP.

(Id.

at 67:19-25.) That same Friday, the PaDEP issued a FEO to MFS for failure to undertake measures necessary to sufficiently address the malodor problem at the facility

*409

stemming from the November 8, 2001 NOV. (PL Ex. 11; Def. Ex. 12.)

As described above, on February 24, 2008, MFS filed an appeal of the January 24, 2003 FEO. (Def. Ex. 19.) Ultimately, in January 2004, the PaDEP rescinded the FEO and MFS withdrew its appeal, allowing the EHB to dismiss the appeal as moot. Defendant DiLazaro attributed the retraction to the ongoing negotiations between the PaDEP and MFS, and MFS’s submission of a new plan approval application. (DiLazaro, 2/22/10, p.m., 73:1-13; Def. Ex. 82.) The proposed plan was for MFS to install a thermal oxidizer to control malodorous emissions and a new device to control particulate matter being emitted from the cupolas. The equipment to be installed would reduce MFS’s carbonyl sulfide and hydrogen sulfide emissions, but it would increase sulfide dioxide emissions.

30

(DiLazaro, February 23, 2010 [“2/23/10”], a.m., 6:14-16; Def. Ex. 82.) MFS’s proposed plan addressed the malo-dor emissions and would enable MFS to do NESHAP testing without the need of an alternative test method, which at the time was a request still pending with the EPA.

{Id.

at 7:1-3.)

In a letter dated February 3, 2004 to Jack Cahalan, Township Manager of Lower Saucon Township, regarding MFS’s plan approval application, Defendant DiLa-zaro stated:

The proposed equipment consists of a high efficiency cyclone to reduce particulate emissions followed by a thermal oxidizer to reduce the malodors.

Since MFS has submitted the plan approval application ... the parties have agreed to focus on processing and addressing questions associated with the application rather than on litigating over the [January 24, 2003 FEO].

(Def. Ex. 38 at 1.)

Similarly, in a letter dated February 5, 2004 to Susan M. Wilson, Executive Director of Citizens Advisory Council, Defendant DiLazaro explained:

Residents of Lower Saucon Township, Northampton County have been concerned about malodorous emissions from the [MFS] facility and DEP has investigated numerous complaints. DEP and MFS have been working on a solution to the problem, which has resulted in the company submitting a Plan Approval Application for technical review.

(Def. Ex. 40.)

In the same week, Defendant DiLazaro sent letters nearly identical to the Wilson letter to Pennsylvania State Senator Lisa Boscola (Def. Ex. 41), State Representative Robert Freeman (Def. Ex. 42), State Representative Patrick Browne (Def. Ex. 43), and Hellertown resident John Raeside (Def. Ex. 44).

iii.

Defendant DiLazaro’s Public Comments

In May 2003, a newspaper article was published noting the discovery of benzene sourced from MFS in ambient air readings. (DiLazaro, 2/22/10, p.m., 83:19-25, 84:1-12.) Defendant DiLazaro testified that he told the reporter that MFS was cooperating with the PaDEP, but the reporter neglected to include these comments in the article. According to Defendant DiLazaro, “[t]hey wrote some other stuff which a lot of it was kind of out of context and didn’t make a lot of sense.”

{Id.

at 84:6-7.) Further, in a letter dated June 24, 2003, Defendant DiLazaro wrote

*410

to Mr. Zagami, “[e]oncerning the newspaper article, I requested the reporter include a statement that MFS is continuing to cooperate with the Department on the resolution of this issue. Unfortunately, it did not appear in the article.” (Def. Ex. 80.)

As Air Quality Program Manager, Defendant DiLazaro was required to attend township meetings in his region. (Dilaza-ro, 2/22/10, p.m., 80:12-15.) He attended approximately five meetings in Lower Sau-con Township to discuss citizen complaints regarding malodors.

(Id.

at 80:24-25.) Defendant DiLazaro kept the Township informed of the investigation into nuisance-level hydrogen sulfide readings in the area. With Mr. Zagami’s input and assistance as counsel for MFS, Defendant DiLazaro created a PowerPoint presentation in preparation for a township meeting in October 2003. (Def. Ex. 32.) In the presentation, he sought to address citizen concerns about chemicals in the air, as mentioned in the May 2003 newspaper article. (DiLazaro, 2/23/10, a.m., 44:16-18.) The Township, however, “was not satisfied with the hydrogen sulfide monitoring. They wanted further monitoring done, and we were advised to do further monitoring.” (DiLazaro, 2/22/10, p.m., 82:9-14.) Defendant DiLazaro was told by his supervisor Mr. McDonnell, “to try to comply with the Township’s request and do further monitoring.”

Id.

iv.

MFS’s Title V Application

As noted above, in the Deficiency Letter sent to Mr. Hauff on January 11, 2006, Defendant DiLazaro explained that the PaDEP had reviewed MFS’s Title V renewal application and had determined that several deficiencies existed. (Def. Ex. 54.) In essence, the letter alerted Mr. Hauff that MFS continued to operate out of compliance with mineral wool NESHAP.

(Id.

at 2.) Until MFS had achieved compliance, the PaDEP could not renew the Title V Permit. Defendant DiLazaro confirmed in his testimony that the Deficiency Letter served to notify MFS of the deficiencies at the mineral wool plant, and to provide MFS with the opportunity to correct any problems that impeded renewal of the Title V Permit. At that point in 2006, however, the application to renew the Title V Permit was still pending and had not been denied. Moreover, the January 11, 2006 letter did not require MFS to cease operating. (DiLazaro, 2/23/10, a.m., 26:6-8.)

D. Testimony of Jack Cahalan

Jack Cahalan was the Township Manager of Lower Saucon Township since November 2003. (Jack Cahalan Trial Testimony [“Cahalan”], 2/23/10, a.m., 79:21-80:2.) Mr. Cahalan testified that he is familiar with the MFS facility because he received complaints from citizens at Township Council meetings about odors coming from the plant.

(Id.

at 80:17-18.) Mr. Cahalan also reviewed notes of Council meetings held before he became Township Manager. These notes showed that at several meetings, there had been discussions about odors emanating from the MFS plant.

(Id.

at 81:1-2.)

On January 27, 2004, Mr. Cahalan sent a letter to Secretary McGinty of the PaDEP at the request of the Township Council, with copies sent to State Senator Boscola, State Representative Freeman, and State Representative Browne.

(Id.

at 82:19-20; Def. Ex. 37 at 2.) The letter stated: “The purpose of this letter is to advise you of the Township Council’s dissatisfaction with the monitoring and enforcement process that has been conducted to date by the Department of Environmental Protection (DEP) regarding malodor complaints emanating from MFS, Inc.... During 2001, 2002 and 2003, DEP received numerous complaints from township residents concerning the malodor from the MFS plant.”

(Id.

at 1.)

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One week after sending the letter to Secretary McGinty, Mr. Cahalan received a memorandum from Mr. Mordosky, summarizing all malodor complaints made against MFS by citizens from October 2001 until January 2004. (Def. Ex. 39.) The three-page complaint log revealed sixty-four complaints from various locations and at various times of the day. Of the sixty-four complaints, six resulted in a NOV being issued.

In a letter dated August 17, 2005 to Defendant DiLazaro, Mr. Cahalan stated, “[t]he air pollution has been created over the years. This facility [MFS mineral wool plant] has been going on too long and while we understand compliance is preferred over penalties and enforcements, citizens of the area should not have to continue to suffer because of the delays.” (Cahalan, 2/23/10, a.m., 95:7-11.)

E. Testimony of Defendant Michael Bedrin

Defendant Michael Bedrin is the Regional Director of the PaDEP, Northeast Regional Office, located in Wilkes-Barre, Pennsylvania. (Michael Bedrin Trial Testimony [“Bedrin”], 2/23/10, p.m., 4:18-20.) As Regional Director, Defendant Bedrin oversees, among other things, the Air Quality, Water, and Waste Programs of the PaDEP. In this position, Defendant Bedrin has authority to issue NOVs and FEOs, and to shut down and fine facilities, including companies that are violating NESHAP standards.

(Id.

at 16:13-19; 104:3-10.) Prior to obtaining this position in June 2004, Defendant Bedrin was Chief Counsel for the PaDEP.

(Id.

at 4:18-23, 5:7-10.) As Chief Counsel, Defendant Bedrin oversaw all PaDEP legal affairs and supervised approximately eighty lawyers.

(Id.

at 6:5-6.)

Defendant Bedrin first became familiar with MFS around June 2007, when the PaDEP filed comments to the proposed Consent Decree between MFS and the EPA.

(Id.

at 17:11-14.) Several months later, Defendant Bedrin became aware that MFS had requested a meeting with Secretary McGinty to discuss renewal of its Title V Operating Permit.

(Id.

at 20:6-18.) The typical practice of the Secretary’s Office is to send out a request for a Briefing Memorandum before a meeting is held.

(Id.

at 20:19-25.) The Memorandum sent to the Secretary follows a standard form or template.

(Id.

at 20:25.) In preparation for the December 17, 2007 meeting, Defendant Robbins prepared, and Defendant Bedrin reviewed, the Briefing Memorandum for Secretary McGinty. (PI. Ex. 6.)

By December 2007, MFS had entered into a Consent Decree with the EPA which allowed MFS to demonstrate compliance with mineral wool NESHAP using an alternative test method. According to Defendant Bedrin, the PaDEP’s understanding of the significance of the Consent Decree was that MFS could continue to operate under its Title V permit shield and to perform an alternative test method to show compliance with NESHAP. If MFS passed the test and otherwise was in compliance with NESHAP, then the Pa-DEP could reissue the Title V Operating Permit. (Bedrin, 2/23/10, p.m., 24:9-16.)

Defendant Bedrin attended the December 2007 meeting in Secretary McGinty’s office. At the meeting, Mr. Zagami, counsel for MFS, was afforded the opportunity to be heard on a number of issues, including the potential sale of MFS,

31

the NOVs

*412

issued by the PaDEP, and the FEO appeal.

(Id.

at 28:1-2.) Secretary McGinty participated in the meeting and suggested that the parties come up with a Title V permit that would address the lingering NESHAP and malodors issues.

(Id.

at 31:3-7.)

After leaving Secretary McGinty’s office, Defendant Bedrin, Defendant Robbins, Mr. Zagami, and Paul Bruder, another counsel for MFS, conferred to discuss how to proceed. They decided that the best course of action would be to allow the PaDEP to draft a Title V permit, send it to MFS for review, and discuss any outstanding issues that hindered renewal of the Title V permit.

(Id.

at 31:18-32:1.) Upon returning to his office, Defendant Bedrin contacted Defendant Wejkszner and informed him about the meeting with MFS representatives.

(Id.

at 32:9-19.)

On January 18, 2008, the PaDEP sent MFS a draft of the Title V Permit. (PL Ex. 8.) Defendant Bedrin testified that this Draft Permit was “not final” and “not binding” on MFS. (Bedrin, 2/23/10, p.m., 41:1.) Rather, Defendant Bedrin explained that he invited comments on the draft and anticipated ongoing negotiations about the proposed conditions.

(Id.

at 47:1-8.) As described

supra,

the Draft Permit contained conditions 27 and 28, which among other things, mandated MFS to shut down its facility if MFS failed to meet the limits established under the alternative test method. Defendant Bedrin admitted that these provisions were “tough” and “they were meant to be tough.”

(Id.

at 44:9-11.)

In a letter dated January 28, 2008 to Defendant Robbins, Mr. Zagami explained that conditions 27 and 28 were troublesome and not acceptable to MFS. (Def. Ex. 73.) In response, Defendant Robbins noted that Mr. Zagami’s letter was:

[Sjurprisingly devoid of any recommended changes, which is unusual where a company has been provided with a draft permit and given an opportunity to comment. That is the primary purpose of providing a draft permit as opposed to simply issuing the permit in final form. If you wish to propose any changes, the Department would be happy to review them.

(Def. Ex. 74.)

Notwithstanding this initial impasse, Defendant Bedrin testified that the PaDEP continued to scrutinize the conditions in the Draft Permit and evaluate how to balance legal requirements with MFS’s demands. (Bedrin, 2/23/10, p.m., 56:1-58:22.) The PaDEP and MFS corresponded on several occasions in 2008, notably through letters dated January 30, 2008; February 14, 2008; February 25, 2008; and March 10, 2008. (Def. Ex. 77.) Finally, on January 16, 2009, the PaDEP issued another proposed Title V permit to MFS.

32

This Second Draft Permit did not contain the “shutdown” provisions in conditions 27 and 28. (Pl. Ex. 9.) Defendant Bedrin testified that even though the PaDEP had the authority to shut down MFS because it was operating out of compliance with mineral wool NESHAP, he preferred to try to work with the facility and achieve compliance rather than to force the facility to

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stop operating. (Bedrin, 2/23/10, p.m., 115:21-24.)

F. Testimony of Defendant Mark Wejkszner

Defendant Mark Wejkszner is the current Air Quality Program Manager for the Northeast Region of the PaDEP. (Mark Wejkszner Trial Testimony [“Wejkszner”], February 24, 2010 [“2/24/10”], a.m., 4:15-16.) Before being promoted to Air Quality Program Manager in October 2007, Defendant Wejkszner worked as the Chief of New Source Review for the PaDEP.

(Id.

at 5:2-3.) In that position, he first became aware of MFS as a regulated corporation when, in 2004, MFS submitted a plan approval application. He became personally involved with MFS in late 2007 when he became Air Quality Program Manager.

(Id.

at 6:10-13.)

On October 3, 2007, Defendant Wejksz-ner attended a meeting with Mr. Zagami and Defendant Robbins to discuss the pending Title V permit application.

(Id.

at 6:19-22.) At the time, MFS had not operated its plant for over eighteen months. At the meeting, MFS representatives informed the PaDEP that it was having difficulty finding a buyer for the plant because it did not have a renewed Title V Permit.

(Id.

at 22:1-7.) Defendant Wejkszner reiterated to Mr. Zagami that the PaDEP would not renew the Title V Permit until MFS complied with NESHAP standards and addressed deficiencies raised by Defendant DiLazaro in his letter to Mr. Hauff. Defendant Wejkszner informed MFS that it could continue to operate under the permit shield and run the alternative test as described in the Consent Decree with the EPA while the Title V application was pending.

(Id.

at 7:6-19.) Of the eighty-seven Title V facilities in the Northeast Region, twenty-seven are operating under a permit shield while their Title V renewal applications are pending.

(Id.

at 8:4-9.) Defendant Wejkszner also testified that it is common for facilities operating under a permit shield to change ownership.

(Id.

at 35:25-36:1.)

On December 17, 2007, Mr. Zagami and Defendants Robbins and Bedrin, among others, attended a meeting with Secretary McGinty. Defendant Wejkszner did not attend this meeting.

(Id.

at 11:9-10.) After the meeting, Defendant Wejkszner learned that the PaDEP and MFS agreed that the PaDEP would prepare a Draft Title V Permit and submit it to MFS representatives for their review and comments.

(Id.

at 11:15-17.) Defendant Wejkszner did not draft the proposed Permit, but he did review it before being sent to MFS.

(Id.

at 11:23-25.)

After the PaDEP sent MFS the Draft Permit, Defendant Wejkszner learned that MFS objected to conditions 27 and 28, the “shutdown” provisions. MFS never submitted suggested language on how to revise conditions 27 and 28 even though, in Defendant Wejkszner’s experience, “when we’re doing these Title Vs ... there’s a lot of negotiation going on.”

(Id.

at 30:23-31:1.)

In early 2008, Defendant Wejkszner and others at the PaDEP continued to discuss how to address MFS’s lingering deficiencies. By March 2008, the PaDEP decided to alter the language in the draft permit to remove the “shutdown” provisions of conditions 27 and 28.

(Id.

at 17:2-7.) Ultimately, in January 2009, the PaDEP submitted a Second Draft Permit to MFS, which did not contain the “shutdown” requirements.

G. Testimony of Defendant Sean Robbins

Defendant Sean Robbins is an attorney with the Governor’s Office of General Counsel and is assigned to the PaDEP. (Sean Robbins Trial Testimony [“Robbins”], 2/24/10, a.m., 40:22-23.) In this

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capacity, Defendant Robbins provides the PaDEP with legal advice and represents the PaDEP in administrative and court proceedings.

(Id.

at 41:17-19.) Defendant Robbins does not have authority to shut down a facility or to revoke a permit.

(Id.

at 50:10-18.)

Defendant Robbins first became involved with MFS when the PaDEP issued the January 24, 2003 FEO. When the FEO was being prepared, Defendant Robbins was asked to provide legal advice.

(Id.

at 41:25-42:2.) Defendant Robbins also represented the PaDEP after MFS appealed the FEO.

(Id.

at 43:3-5.) As noted above, the PaDEP rescinded the FEO and MFS withdrew its appeal after MFS submitted a plan approval application for the installation of a thermal oxidizer at the facility.

(Id.

at 44:1-5.)

Defendant Robbins attended a few meetings at Lower Saucon Township with Defendant DiLazaro.

(Id.

at 46:25-47:1.) The Township requested the meetings to express its concern about malodors emanating from MFS and to be apprised of how the PaDEP was handling the matter. Defendant Robbins also attended meetings with representatives of the PaDEP, MFS, and the EPA where the parties discussed the mineral wool NESHAP compliance issue.

(Id.

at 47:13-19.)

Defendant Robbins testified that as of February 16, 2006, when MFS ceased operating, the PaDEP had the authority to revoke the permit shield and to deny outright MFS’s Title V Permit because MFS had failed to comply with state and federal regulations.

(Id.

at 88:20-24.) The Pa-DEP also had the option to assess civil penalties against MFS for failure to comply with the regulations or to order a shutdown of the facility.

(Id.

at 89:1-8.)

At some point in early 2006, Defendant Robbins spoke on the telephone with Richard Caplan, an attorney for Armstrong, a potential buyer of the MFS plant. (Robbins Deposition, 2/18/10, p.m., 55:1-17.) Defendant Robbins explained in his deposition, which was read into the record, that “the discussions were about our enforcement actions or position concerning MFS. If I recall correctly, he wanted to know what — how the department was involved with MFS.... I probably would have outlined the malodor concerns that we had and the MACT compliance issues.”

(Id.

at 55:20-25, 56:1-2.)

i.

Defendant Robbins’s Comments on the Consent Decree

On April 24, 2007, Defendant Robbins sent a letter on behalf of the PaDEP to the United States Department of Justice commenting on the proposed Consent Decree between the EPA and MFS. (Def. Ex. 62.) While the PaDEP sent comments to the proposed Consent Decree, it never filed formal objections to the proposed Decree. (Robbins, 2/24/10, a.m., 58:2-4.) In general, the PaDEP was concerned that the Consent Decree did not adequately address the deficiencies identified by the PaDEP. As Defendant Robbins explained in his letter:

While the terms of the proposed Consent Decree are designed to bring MFS into compliance with 40 C.F.R. Part 63, Subpart DDD [Mineral wool NESHAP], the company is currently out of compliance and has a renewal application for its Title V operating permit pending before the Department, which is the permitting agency responsible for the review of the application. Generally, a person may not operate a stationary source in Pennsylvania unless the Department has issued to the person a permit to operate the source in response to a written application (25 Pa.Code § 127.402). The Department will refuse to renew a permit in certain instances, such as those where the source is likely to violate the Clean Air Act or the regu

*415

lations thereunder that are applicable to the source; where in the design of the source, provision is not made for adequate verification of compliance, including source testing or alternative means to verify compliance; or where the applicant or a related party has a violation or lack of intention or ability to comply listed on the compliance docket ( 25 Pa. Code § 127.422 ). The Department believes that all of these bases for denying a permit renewal application apply in this case. Although provisions are included in the proposed Consent Decree to address some of these issues, not all of the outstanding compliance issues, especially a clear demonstration of compliance with the emission limits in 40 C.F.R. § 63.1175 , have been satisfied. Therefore, the Title V permit cannot be renewed unconditionally at this time.

(Def. Ex. 62 at 2.)

The PaDEP also wanted to alert federal authorities of the outstanding malodor issue pending before the Department. According to Defendant Robbins, the EPA does not have the authority to deal with issues relating to alleged malodor in Pennsylvania. Further, the EPA does not have its own malodor regulation, but rather defers to each state to regulate malodors. (Robbins Deposition, 2/18/10, p.m., 35: 24-36:22.)

On October 3, 2007, Defendant Robbins and Defendant Wejkszner attended a meeting with MFS representatives. At the meeting, Mr. Zagami expressed concerns about MFS not having a renewed Title V Permit. (Robbins, 2/24/10, a.m., 80:5-22.) Mr. Zagami explained that MFS was having difficulty selling the facility and entering into contracts because it was operating under a permit shield. In response, Defendant Robbins explained that the PaDEP could not issue a renewed Title V Permit because there were outstanding compliance issues and MFS had not yet performed its alternative test method as required under NESHAP regulations. Defendant Robbins reiterated that despite the PaDEP’s regulatory concerns, MFS could continue to operate under the permit shield while the facility performed the NESHAP test. If MFS performed the test and demonstrated that it could operate in compliance with regulations and without malodors, then the PaDEP would reissue the Title V Permit.

(Id.

at 81:18— 82:5.)

In a letter dated October 18, 2007, Mr. Zagami wrote to Defendant Robbins that MFS had been prejudiced by the PaDEP’s actions and, consequently, “MFS has not been able to enter into serious negotiations for the sale of the facility to a third party.” (Def. Ex. 68.) Moreover, MFS did not consider operating under a permit shield as a “viable or realistic business option.”

(Id.)

Defendant Robbins replied to Mr. Zaga-mi in a letter dated October 24, 2007. (Def. Ex. 69.) In the letter, Defendant Robbins explained, “we have informed MFS several times that it may operate under its permit application shield, most recently during our October 3, 2007 meeting.”

(Id.

at 1.) Defendant Robbins continued:

The Department has held MFS’s Title V renewal application in abeyance in order to provide MFS with opportunities to address outstanding compliance issues. We have done this for some time, rather than issue a denial, and feel that this is clearly an additional demonstration of good faith and fair dealing on the part of the Department. MFS has the option of requesting that the Department issue a decision on its Title V renewal application without submitting any additional information. The Department would reluctantly act on such a request, however it should be noted that any subsequent

*416

renewal application would need to be accompanied by the required permit application fees and forms.

(Id.

at 3.)

ii.

December 2007 Meeting with Secretary McGinty

On December 17, 2007, Defendant Robbins attended a meeting with MFS representatives in Secretary McGinty’s office to discuss renewal of MFS’s Title V Permit. In preparation for the meeting, Defendant Robbins prepared a Briefing Memorandum for Secretary McGinty to educate her on the issues to be discussed at the meeting. (PI. Ex. 6.) In the “Background” section of the memorandum, Defendant Robbins wrote that “MFS also has a history of malodor problems.” He refers,

inter alia,

to the January 24, 2003 FEO issued to MFS and MFS’s subsequent appeal, even though the PaDEP eventually rescinded the FEO and EHB dismissed the appeal as moot.

(Id.

at 2.)

Defendant Robbins attached various correspondence to the eight-page Briefing Memorandum. He included two letters dated August 17, 2005 and March 31, 2006 from Jack Cahalan, Lower Saucon Township Manager, requesting an update on the Department’s enforcement action against MFS. Defendant Robbins also attached two letters dated February 21, 2003 and March 4, 2004 from State Representative Rooney to Secretary McGinty, in which Representative Rooney stated that the actions taken by the PaDEP against MFS are “not warranted and are grossly disproportionate to the facts and circumstances .... ”

(Id.

at 7-8.) Defendant Robbins submitted the Briefing Memorandum to Defendant Bedrin for his review. (Robbins, 2/24/10, a.m., 96:13-14.) Defendant Robbins said that Defendant Wejkszner also may have received a copy of the Memorandum. (Robbins Deposition, 2/18/10, p.m., 52:10-14.)

iii.

January 2008 Draft Permit

At the meeting, Mr. Zagami presented his position on the contact between MFS and the PaDEP, and the reasons why MFS needed to operate under a renewed Title V Permit. (Robbins, 2/24/10, a.m., 97:1-2.) As noted above, the meeting concluded with an understanding that the Pa-DEP would draft a Title V Permit for MFS to review and consider. Defendant Robbins was consulted on the terms of the Draft Permit, including the “shutdown” provisions of conditions 27 and 28.

(Id.

at 97:18-21.) On January 18, 2007, Defendant Robbins sent the Draft Permit to Mr. Zagami by e-mail.

In a letter dated February 14, 2008 to Secretary McGinty, Mr. Zagami requested “that the two conditions [27 and 28] be deleted from the Proposed Permit.” (Def. Ex. 75.) On February 25, 2008, Defendant Robbins responded to Mr. Zagami’s letter. (Def. Ex. 76.) Defendant Robbins wrote that the PaDEP would alter the “shutdown” provision language of the proposed Permit:

While the Department appreciates the concerns you expressed in your January 30, 2008 and February 14, 2008 correspondence regarding Condition # 28, it cannot simply agree to delete the proposed language. The Department will, however, agree to amend the condition to state:

Within 30 days of being notified of a violation of 25 Pa.Code § 123.31 or Section C, Condition # 003,

33

Permit-tee shall submit a plan to abate the emission of malodorous air contami

*417

nants into the outdoor atmosphere, together with an implementation schedule, to the Department for review and approval. The abatement plan should be in accordance with 25 Pa.Code § 123.31. If the plan is approved by the Department, MFS shall implement the plan in accordance with the approved implementation schedule. Nothing in this condition limits the Department’s authority or right to take an enforcement action for violations of 25 Pa.Code § 123.31 or Section C, Condition # 003, which may include assessment of civil penalties or an order to cease operation of the facility.

(Def. Ex. 76 at 4.) Defendant Robbins testified that a violation of Condition # 003, referred to in the amended provision, would likely result in a NOV being sent to MFS. (Robbins, 2/24/10, p.m., 18:23.)

In a letter dated March 10, 2008, Mr. Zagami responded to Defendant Robbins’s letter and repeated MFS’s contention that the actions of the Department have damaged and prejudiced MFS. (Def. Ex. 77.) Mr. Zagami concluded by explaining, “[i]n light of your apparent unwillingness to change your position, MFS has little choice now except to attempt to mitigate its damages by dismantling the plant and selling whatever machinery, equipment and parts that it can.”

(Id.

at 4.)

34

On April 22, 2008, Defendant Robbins responded to Mr. Zagami by letter. (Def. Ex. 78.) In the correspondence, Defendant Robbins tracked the history of relations between MFS and the PaDEP. With regard to the Draft Permit, Defendant Robbins stated:

Rather than simply rejecting MFS’s requests to remove certain conditions from the draft compliance permit, the Department has attempted to engage MFS in negotiations over the permit terms with the hope of reaching a mutually agreeable resolution. In fact, your January 30, 2008 letter in response to receipt of the draft compliance permit was void of any recommended changes and simply criticized the Department and the terms of the draft permit. The Department responded to your January 30, 2008 letter with correspondence dated February 11, 2008, expressing its surprise at the lack of any recommended changes by MFS and indicating that such a response was uncommon where a draft permit was provided to a company for review and comment. The Department also explicitly invited you to comment on the terms, whereupon you insisted on the removal of Condition Nos. 027 and 028 in Section C of the draft compliance permit.

Once again, in an effort to establish terms for a compliance permit, the Department proposes to amend Section C, Condition No. 027. Specifically, the Department proposes a change in the wording of paragraph i to state:

If EPA disapproves the alternate test method based on the results of the validation test, EPA shall specify the deficiencies in writing. All review and approval will be governed by the review and approval procedures found in Section VIII of the Consent Decree, entered in the matter of

U.S.A. v. MFS, Inc.,

Civil Action No. 05-6656 (E.D.Pa.).

We believe this grants MFS considerable leeway in satisfying Department permitting requirements and strongly urge MFS to give due consideration to this proposed change.

(Def. Ex. 78 at 2-3.)

On May 29, 2008, Defendant Robbins once again wrote to Mr. Zagami about

*418

conditions 27 and 28 of the Draft Permit. (Def. Ex. 80.) In the letter, Defendant Robbins offered another draft of the contested conditions. Defendant Robbins also remarked that the PaDEP did not intend to interfere with a possible sale of the MFS facility. Specifically, Defendant Robbins wrote:

First, we reiterate our disagreement with your contention that the Department somehow caused MFS severe or irreparable damage or that it has prevented MFS from securing an air quality permit or selling the facility. As we indicated previously, the Department remains open to meeting and discussing its concerns with any prospective purchaser and representatives from MFS, including permit transfer issues. We note that the Department has not been contacted by any prospective purchaser to discuss outstanding Department concerns and no one has scheduled a recent file review to examine the Department’s public files on the MFS facility. Such a file review would presumably be part of a due diligence search associated with the sale of the facility.

35

(Def. Ex. 80 at 1.)

On May 29, 2008, the same day Defendant Robbins wrote this last letter to Mr. Zagami, MFS filed the instant lawsuit.

III. LEGAL STANDARD

In ruling on a Fed.R.Civ.P. 50(b) motion, the court must determine whether viewing the evidence in the light most favorable to the nonmovant and giving it the advantage of every fair and reasonable inference, there is sufficient evidence from which a jury reasonably could find liability.

See Eshelman v. Agere Sys., Inc.,

554 F.3d 426, 433 (3d Cir.2009) (citing

Lightning Lube, Inc. v. Witco Corp.,

4 F.3d 1153, 1166 (3d Cir.1993)). Judgment as a matter of law should be granted “where the ‘record is critically deficient of the minimum quantum of evidence in support of the verdict.’ ”

Id.

(quoting

Gomez v. Allegheny Health Servs., Inc.,

71 F.3d 1079, 1083 (3d Cir.1995)). “[I]n performing this narrow inquiry, [the court] must refrain from weighing the evidence, determining the credibility of witnesses, or substituting [its] own version of the facts for that of the jury.”

Id.

(quoting

Marra v. Phila. Hous. Auth.,

497 F.3d 286, 300 (3d Cir.2007));

see also Ambrose v. Twp. of Robinson, Pa.,

303 F.3d 488, 492-93 (3d Cir.2002). In ruling on a Rule 50 motion, a court must review the entire trial record, drawing all reasonable inferences in favor of the nonmovant.

Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133 , 120 S.Ct. 2097 , 147 L.Ed.2d 105 (2000).

Entry of judgment as a matter of law is a “sparingly” invoked remedy.

CGB Oc-cup. Therapy, Inc. v. RHA Health Servs., Inc.,

357 F.3d 375 , 383 (3d Cir.2004). However, more than a “scintilla of evidence” is needed to sustain a liability verdict.

Ambrose,

303 F.3d at 492 ;

see also Johnson v. Campbell,

332 F.3d 199, 204 (3d Cir.2003) (describing the legal standard of a Fed.R.Civ.P. 50 motion). “The question is not whether there is literally no evidence supporting the unsuccessful party, but whether there is evidence upon which a reasonable jury could properly have found its verdict.”

Eshelman,

554 F.3d at 433 (quoting

Gomez,

71 F.3d at 1083 ).

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IV. DISCUSSION

A.

Defendants Bedrin, Wejkszner, And Robbins Are Entitled To Judgment

As A

Matter Of Law On MFS’s First Amendment Retaliation Claim

In response to Special Interrogatory Nos. 1-3 on the verdict form (Doc. No. 112), the Jury found that MFS proved by a preponderance of the evidence that Defendants Bedrin, Wejkszner, and Robbins “violated Plaintiffs right not to be retaliated against for exercising its First Amendment rights.”

36

(Doc. No. 112.) Here, MFS contends that Defendants performed acts of retaliation after MFS requested and had a meeting with Secretary McGinty to discuss its pending Title V Permit application. For the following reasons, there is insufficient evidence from which a reasonable jury could find liability on the retaliation claim.

The First Amendment to the United States Constitution provides, “Congress shall make no law ... abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. amend. I. The right to petition government is the right at stake in this case. “At its core, the right of petition protects a personal right to bring complaints about public policy directly to officers of the government.”

Ferrone v. Onorato,

298 Fed.Appx. 190, 193 (3d Cir.2008).

To establish a First Amendment retaliation claim under 42 U.S.C. § 1983 , a plaintiff, such as MFS, must demonstrate that: 1) it engaged in an activity protected by the First Amendment; 2) it suffered an adverse action; and 3) the protected activity was a substantial or motivating factor in the alleged retaliatory action.

Baldassare v. New Jersey,

250 F.3d 188, 195 (3d Cir. 2001). “A defendant may defeat the claim of retaliation by showing that it would have taken the same action even if the plaintiff had not engaged in the protected activity.”

Lauren W. v. DeFlaminis,

480 F.3d 259 , 267 (3d Cir.2007) (citing

Am-brose,

303 F.3d at 493 ).

i.

Protected Activity

Formal grievances directed at public officials qualify as protected activity under the Petition Clause of the First Amendment.

Brennan v. Norton,

350 F.3d 399, 417 (3d Cir.2003). Defendants concede that MFS engaged in protected activities when MFS through its representatives requested a meeting with Secretary McGinty and subsequently met with her on December 17, 2007 to discuss, among other things, the renewal status of the pending Title V Permit application. (Doc. No. 121 at 32.)

ii.

Adverse Action and Motivating Factor

Under the second element of the retaliation claim, MFS must prove that each Defendant individually responded to MFS’s protected activity with a retaliatory act. The test to determine whether an action is adverse is whether it is “sufficient to deter a person of ordinary firmness from exercising his constitutional rights.”

Miller v. Mitchell,

598 F.3d 139, 152 (3d Cir.2010) (quoting

Mitchell v. Horn,

318 F.3d 523, 530 (3d Cir.2003)). Here, MFS contends that it suffered an adverse action when Defendants 1) submitted a “misleading” Briefing Memorandum to Secretary McGinty in preparation for the meeting between the parties on December 17, 2007,

*420

and 2) inserted two “onerous” conditions in the Draft Title V Permit after the meeting. Under the third element of the retaliation claim, MFS must prove that the evidence demonstrates that Defendants were motivated to take these actions as a result of the request for or meeting with Secretary McGinty. Defendants argue that the two claims do not constitute adverse actions as a matter of law. Moreover, Defendants submit that the evidence shows the protected activity was not a substantial or motivating factor for their actions and, with respect to the two conditions in the Draft Permit, they would have insisted on these conditions and taken the same action even if MFS had not requested and attended the meeting with Secretary McGinty-

a.

Briefing Memorandum

During trial, MFS argued that the Briefing Memorandum drafted by Defendant Robbins, reviewed by Defendants Bedrin and Wejkszner, and submitted to Secretary McGinty before the December 17, 2007 meeting, constituted an adverse action “because it was grossly misleading and riddled with material omissions, making the petition for and subsequent meeting with her futile.” (Doc. No. 166 at 61.) MFS contended that the Memorandum did not present MFS’s “side of the story.”

The trial evidence shows that in October 2007, MFS representatives requested a meeting with Secretary McGinty to voice concerns over the pending Title V Operating Permit renewal application. Secretary McGinty granted the request and Defendant Robbins was directed to prepare a Briefing Memorandum to get Secretary McGinty “up to speed” and to educate her about MFS. (Robbins Deposition, 2/18/10, p.m., 51:23-52:3.) Defendant Robbins prepared, and Defendants Bedrin and Wejkszner reviewed, an internal eight-page memorandum to Secretary McGinty with about a dozen attachments, including, among other items, correspondence between the parties including a letter of complaint sent by Mr. Zagami, counsel for MFS, and a letter from Representative Rooney criticizing the Department’s handling of MFS. (PI. Ex. 6.) Attached letters stated that “MFS was being prejudiced” by the PaDEP’s actions, that the PaDEP was “not dealing with MFS in ‘good faith’ and reneging on promises” and that “actions taken by [Pa]DEP against MFS are ‘not warranted and are grossly disproportionate to the facts and circumstances.’ ” (PI. Ex. 6 at 7-8.) Defendant Robbins recommended in the Memorandum that the PaDEP “withhold reissuance of the Title V Permit until MFS performs the required NESHAP testing and demonstrates compliance with the PM limit.” Ultimately, “[rjenewal of the permit can and should take place after a demonstration of compliance with applicable requirements.”

(Id.

at 6.)

The evidence shows that at the meeting in Secretary McGinty’s office, Mr. Zagami was afforded the opportunity to be heard on a number of issues, including the potential sale of MFS, the NOVs issued by the PaDEP, and the FEO appeal. (Bedrin, 2/23/10, p.m. 28:1-2.)

37

The evidence does not show that Secretary McGinty ignored Mr. Zagami’s complaints, disregarded his representations, or was prejudiced in any way by the Memorandum. Instead, the testimony adduced at trial shows that Secretary McGinty participated in the meeting and broke whatever impasse may have existed between MFS and the PaDEP by suggesting that the parties come up with a

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Title V Permit that would address the lingering NESHAP and malodor issues. She suggested this solution despite the statement in the Memorandum that “NERO

38

recommends that the Title V Permit not be reissued at this time.”

(Id.

at 31:3-7.)

39

Before the meeting, Defendant Robbins recommended that once MFS addressed the outstanding issues, the PaDEP would likely reissue the Title V Permit. The meeting resulted in a change in the position of the PaDEP from one of requiring MFS to demonstrate compliance before being issued a permit to one of issuing a conditional permit without requiring compliance in the first instance. Consequently, the only reasonable inference that arises from the meeting is that MFS accomplished the goal it sought when it requested the meeting with Secretary McGinty: to unfreeze what it considered to be the stalled permit renewal process.

The Briefing Memorandum submitted to Secretary McGinty contained a condensed version of the ongoing relationship between MFS and the PaDEP over about a nine-year period. It was nothing more than a summary of the interaction between the regulators and MFS. The evidence does not demonstrate that Secretary McGinty requested or Defendants intended the Memorandum to be an unabridged recitation of the complete history of the MFS plant or of the relationship of MFS with the PaDEP. There is no evidence that any Department employee expected the Memorandum to be that inclusive. It was simply a Briefing Memorandum, which by its very name was meant to be brief or concise. Defendant Robbins followed a template and included information he deemed relevant based on his experience as an attorney with the Governor’s Office assigned to the PaDEP.

The introductory paragraph of the Memorandum states as follows:

The Department has not reissued MFS’s Title V Permit as a result of MFS’s failure to comply with all of the requirements of the Mineral Wool Manufacturing NESHAP, including: (1) performance of required emission testing and demonstration of compliance with the NESHAP particulate limit; (2) failure to operate a baghouse leak detection system; (3) failure to submit an operations, maintenance and monitoring plan; and (4) failure to satisfy additional NESHAP reporting requirements. In addition, MFS has a history of malodor problems, which they have not taken steps to address, including submission of a revised plan approval application for the installation of odor control equipment. The Department sent MFS a technical deficiency letter on January 11, 2006 identifying these issues, however those deficiencies have still not been adequately addressed and MFS has not demonstrated to the Department’s satisfaction that it can operate in compliance with applicable regulatory requirements. Therefore, NERO recommends that the Title V permit not be reissued at this time.

(PL Ex. 6 at 1.)

The Briefing Memorandum contained a section headed: “RECOMMENDATION.” It stated as follows:

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The NERO recommends that the Department withhold reissuance of the Title V Permit until MFS performs the required NESHAP testing and demonstrates compliance with the PM limit. Under Sections 402 and 422 of the Air Resources Regulations (25 Pa Code §§ 402 and 422), the Department cannot simply renew an operating permit where there has not been a sufficient demonstration by the facility that it will operate in compliance with applicable requirements. By issuing a permit to a facility that has not demonstrated an ability to comply, the Department opens itself to an appeal by a third party, which could very well be Lower Saucon Township in this case, or a group of interested citizens.

The Department has informed MFS that it may operate under the permit shield provision in the Air Resources Regulations pending renewal (25 Pa.Code § 127.403), provided operation is done in accordance with the Air Pollution Control Act, The Clean Air Act and the regulations promulgated thereunder. Aside from the NESHAP testing and demonstration of compliance with the PM limit, MFS has still not completed the other NESHAP requirements referenced above (the need to install and operate baghouse leak detection systems ( 40 C.F.R. § 63.1181 ), submission of an operations, maintenance and monitoring plan ( 40 C.F.R. § 63.1187 ) and compliance with additional reporting requirements ( 40 C.F.R. §§ 63.1193 and 63.10)). Accordingly, the Department encouraged MFS to address these issues as quickly as possible (see January 11, 2006 and October 24, 2007 letters from DEP attached). Malodor issues also remain a concern and if they are generated from the operation of the facility while operating under the permit shield, could result in a shut down order or compliance order. Renewal of the permit can and should take place after a demonstration of compliance with applicable requirements.

(PI. Ex. 6 at 6.)

MFS has set forth in its post-trial memorandum what it contends are the misleading statements contained in the Briefing Memorandum that prevented the Secretary from getting “MFS’s side of the story.” None are actions that would have deterred a person of ordinary firmness or a company like MFS or its representatives from exercising a First Amendment right to request and attend the December 2007 meeting with Secretary McGinty. Furthermore, there is no evidence that they influenced Secretary McGinty to take any action against MFS. The statements alleged to be misleading are the following:

By way of example, the Defendants stated in the Briefing Memorandum that the Department issued a Field Compliance Order (FCO)

40

to MFS on January 24, 2003 after attempting to have the company resolve malodor

violations’ ”

(emphasis added), but the Defendants failed to disclose that,

inter alia:

(i) at the time of the FCO, the Mineral Wool Plant had only received

one

notice of violation for a single incident in its 36 years of operation (as opposed to “malo-dor violations”); (ii) the notice of violation cited in the FCO, moreover, was based upon a single complaint by one individual and otherwise did not comply with applicable law; (iii) Defendant Robbins was involved personally in the issuance of the FCO and had personal knowledge of the facts relating thereto; (iv) the FCO was withdrawn by PaDEP.

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In addition, and by way of further example, the jury learned that the Defendants omitted from their briefing memorandum the material fact that PaDEP has

never

met its burden of proof that MFS has never violated the applicable malodor laws (despite the PaDEP issuing to MFS numerous legally and/or factually deficient NOVs); and that there has never been an adjudication by any court or governing body that MFS was ever in violation of the applicable malo-dor laws. Furthermore, the Defendants failed to disclose that the mineral wool plant received no notices of violations for alleged malodor in the first 30 years and last two years of its operations, and that all of the NOVs came during a time when MFS was appealing the Field Enforcement Order. The Defendants also failed to disclose that the Bethlehem Sewage Treatment Plant admitted to being a source of hydrogen sulfide malodor in that area for years.

By way of additional examples, the jury also learned that the defendants falsely represented that the EPA had denied MFS’[s] request for both an alternative test limit and an alternative test method in connection with MACT and failed to disclose that MFS had conducted stack testing and was operating within all applicable emission standards based on that testing, including as much as 50 times lower than the applicable standard for S02. Furthermore, the Defendants gave Secretary McGinty an old newspaper article from 2004 relating to irrelevant, scandalous claims about MFS by a former disgruntled employee who had been discharged by MFS, which Defendant Robbins admitted was not relevant, leading to the reasonable inference that it was attached to prejudice the Secretary against MFS in retaliation for MFS having petitioned her to address the Defendants’ mistreatment of MFS. Moreover, the Defendants failed to disclose that the Northeast Regional office made false public comments about MFS, including that MFS was emitting benzene, of which Defendant Robbins admitted he had knowledge.

(Doc. No. 166 at 61-64) (citations to the trial transcript omitted).

The first major complaint with the Briefing Memorandum relates to the malo-dor issue. The Memorandum, which essentially deals with the lack of compliance with mineral wool NESHAP regulations, states:

MFS also has a history of malodor problems. The Department received numerous malodor complaints and verified several malodor violations when the facility was operating. Officials from Lower Saucon Township have expressed their concerns over malodors from the facility and the Regional Air Manager and Department counsel met with officials from the Township on a number of occasions to update them on what was being done to address both malodors and NESHAP issues at the facility. (See attached letters from Lower Saucon Twp.)

The Department issued a Field Compliance Order (FCO) to MFS on January 24, 2003 after attempting to have the company resolve malodor violations informally. Issuance of the FCO, which was appealed to the Environmental Hearing Board by MFS, initiated a long and involved plan approval process for installation of odor control equipment at the facility. The equipment, however, was never installed. The plan approval process eventually ended in June 2005 following a decision from the U.S. District Court for the District of Columbia, striking down the Pollution Control Project (PCP) exemption to NSR requirements, which is explained in greater detail below.

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(Pl. Ex. 6 at 20.) The Briefing Memorandum also refers to the need to install odor control equipment to reduce or prevent malodors at MFS and to an April 27, 2004 meeting with representatives of MFS, the PaDEP, and the EPA to resolve NESHAP and malodor issues.

In regard to the malodor problem, the Jury found in Interrogatory Nos. 24, 28, 32, and 36 that Defendants proved by a preponderance of the evidence “that they could reasonably believe that Plaintiff [MFS] was emitting malodors caused by hydrogen sulfide based on the evidence available to him.” (Doc. No. 112.) The evidence in the record to support this finding consists of, among other things, the NOVs issued to MFS and the testimony of Becky Easley, the PaDEP Air Quality Specialist, who confirmed four or five times that malodors were being emitted from the MFS facility. Ms. Easley would visit with homeowners complaining about an odor and make a determination if the odor was strong and persistent enough to be classified as a malodor. If she was satisfied that there was a malodor, she would then attempt to confirm the source of the malodor. In addition, there was evidence that citizen complaints about odors being emitted from the MFS plant were the subject of public town-hall meetings of Lower Saucon Township. Viewing the evidence in the light most favorable to MFS and considering the finding of the Jury that Defendants had a reasonable belief that MFS was emitting malodors, it is clear that Defendant Robbins drafted the Briefing Memorandum to educate the Secretary on the malodor problems MFS had with the PaDEP. The fact that MFS was dissatisfied with the Memorandum because it did not contain information about malodors that it would have liked to be included does not rise to the level of an adverse action that would have deterred a person of ordinary firmness from exercising a constitutional right. MFS simply overlooks the fact that the evidence shows that the Memorandum from counsel to his client was meant to be concise and not as expansive as MFS asserts it should have been.

The same is true for MFS’s other complaints about the Briefing Memorandum. First, Defendants did not falsely represent that' the EPA had denied MFS’s request for both an alternative test limit and an alternative test method in connection with MACT. The phrase “alternate test limit” apparently refers to the mineral wool NESHAP standards. There is no evidence that the EPA consented to allow MFS to use an alternative test standard. There is evidence that in 2003 the EPA consented to the use of an alternative test method in order to comply with the standards in mineral wool NESHAP. In 2001, MFS sent a request to Defendant DiLaza-ro to be considered for either a different testing method or a different test standard in order to demonstrate compliance with mineral wool NESHAP. Defendant DiLa-zaro informed MFS that the request would have to be made to the EPA. The EPA sent MFS a letter in 2003 that declined the request because alternative testing options existed to demonstrate compliance with the current PM emission limits under Sub-part DDD, which is contained in mineral wool NESHAP regulations. MFS’s representative Mr. Hauff believed that the letter permitted MFS to perform an alternative test method and this interpretation was confirmed by Defendant DiLazaro. In the Consent Decree of 2007 with the EPA, there was a provision that allowed MFS to perform an agreed upon alternative test method. Despite being given permission to use an alternative test method in both instances in 2003 and 2007, MFS never carried out the alternative test method and never complied with the standards of mineral wool NESHAP. The error on page three of the Memorandum in

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stating “[o]n April 9, 2003, EPA sent MFS a letter rejecting their request for an alternate limit or test method” (PI. Ex. 6 at 3) is only incorrect with respect to the request for an alternate test method, which was not rejected by the EPA. In the context of the entire eight-page Briefing Memorandum, this error does not amount to an act of retaliation or an adverse action. The important fact, as stressed several times in the Memorandum, was that MFS never complied with mineral wool NESHAP and for this primary reason and others the PaDEP would not approve the application and issue a Title V Permit.

41

In addition, MFS’s dissatisfaction with Defendant Robbins’s choice of attachments to the Briefing Memorandum and its attempt to cherry-pick through the eight-page Memorandum amounts at best to a dissatisfaction over word choice and content. The content of the Memorandum is not indicative of a vendetta against MFS by Defendants and falls short of supporting a constitutional violation. Moreover, there is no evidence in the record that, had MFS been aware of the information it claims was omitted or misleadingly inserted in the Briefing Memorandum, it would have been deterred from requesting or attending the meeting with Secretary McGinty. The contention of MFS that the Briefing Memorandum was intentionally drafted in a misleading manner is totally inconsistent with the outcome of the meeting. If the Briefing Memorandum had been misleading to the extent claimed by MFS, the result would have been no further negotiations over the renewal permit until MFS demonstrated compliance with applicable regulations. However, the meeting had the opposite effect. MFS received what it had reasonably sought — a Title V Permit, albeit a draft, but one that was subject to the normal process of negotiation and potential renewal.

42

The evidence does not support an inference that the request for the meeting with the Secretary was a substantial or motivating factor to include or exclude information claimed to be adverse to MFS in the Briefing Memorandum. Defendant Robbins, as counsel to the Department, prepared the Memorandum by following a template and, as an attorney writing a memorandum for a client, is afforded latitude in deciding on

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its content within the framework of the template. The information included in the Memorandum and the attachments show that the Department took a consistent position over the years towards MFS in dealing with its inability to comply with mineral wool NESHAP and to eliminate the odor problem. Defendant Bedrin, whose involvement with MFS began shortly before the Briefing Memorandum was prepared, was himself educated through the Memorandum on the history of MFS’s contact with the Department. Neither Defendant Bedrin nor Wejkszner had any personal involvement with the matters which MFS claims are misleading or omitted from the Memorandum.

43

Accordingly, when the evidence is viewed in the light most favorable to MFS, the second and third elements of a First Amendment retaliation claim have not been established in regard to the Briefing Memorandum,

b.

Draft Permit

MFS also argues that conditions 27 and 28 in the Draft Permit sent to them following the meeting with Secretary McGinty were “onerous” adverse actions. On January 18, 2008, following the December 2007 meeting, the PaDEP sent a Draft Title V Operating Permit to MFS. (PI. Ex. 8.) Defendants did not draft this document, but Defendant Robbins was consulted on its terms, including the “shutdown” provisions of conditions 27 and 28, and Defendants Bedrin and Wejkszner reviewed it before it was sent to MFS.

The Draft Permit is forty-five pages long, and each page contains the word “PROPOSED” in bold-face capital letters in the bottom-right corner. At least ten pages feature the phrase “ * * ^Permit Shield In Effect* * * ” in bold-face type surrounded by asterisks.

(Id.

at 30-39.) The Draft Permit contains ninety-two conditions, including the two “shutdown” provisions. Mr. Hauff testified that these conditions were a “poison pill.” (Hauff, 2/18/10, a.m., 109:6-11.) Defendant Bedrin admitted that these provisions were “tough” and “they were meant to be tough.” (Bedrin, 2/23/10, pm., 44:9-11.) However, the evidence shows that this Draft Permit was “not final” and “not binding” on MFS, but was subject to negotiation.

(Id.

at 41:1.)

Condition 27 covered the ongoing mineral wool NESHAP noncompliance by MFS, and condition 28 dealt with future malodor problems that might arise at the plant. Each contained a “shutdown” provision for noncompliance. At trial, MFS claimed that based on the onerous terms of conditions 27 and 28 and Defendants’ history of egregious conduct, a reasonable conclusion was that Defendants were not negotiating, but rather were retaliating against MFS for exercising its constitutional right. However, the evidence does not support this claim and no reasonable jury could make such a finding when viewing the evidence in the light most favorable to MFS.

First, as already noted, the evidence shows beyond peradventure that Defendants, in proposing the conditions in the Draft Permit, were acting within their authority to ensure compliance with state and federal environmental regulations. Under the Air Pollution Control Act, 35 P.S. § 4004,

supra

n. 3, the PaDEP has the right to:

(9)(i) Issue orders to any person owning or operating an air contamination source, or owning or possessing land on which such source is located, if such source is introducing or is likely to introduce air contaminants into the outdoor

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atmosphere in excess of any rate provided for by this act, any rule or regulation promulgated under this act or any plan approval or permit applicable to such source, or at such a level so as to cause air pollution. Any such order may require the cessation of any operation or activity which is introducing air contaminants into the outdoor atmosphere so as to cause air pollution.....

(27) Do any and all other acts and things not inconsistent with any provision of this act, which it may deem necessary or proper for the effective enforcement of this act and the rules or regulations promulgated under this act.

Moreover, 35 P.S. § 4007.2 provides, in relevant part, as follows:

In addition to the other enforcement provisions of this act, the department may issue a permit ... to a source that is out of compliance with this act, the Clean Air Act or the regulations promulgated under either this act or the Clean Air Act.... If the permittee fails to achieve compliance by the final compliance date, the permit shall terminate. The permit shall be part of an overall resolution of the outstanding noncompliance and may include the payment of an appropriate civil penalty for past violations and shall contain such other terms and conditions as the department deems appropriate.

Second, the record is replete with evidence that the Draft Permit was intended to be just that — a draft. Although Mr. Hauff testified that he felt that conditions 27 and 28 were not negotiable, this claim at best is Mr. Hauff s unsupported opinion and constitutes only a scintilla of evidence on this point. His opinion was based on a review of documents presented during discovery, and not based on his knowledge of events when they actually happened. (Hauff, 2/18/10, a.m., 113:1-5.) The letters between Defendant Robbins and MFS’s counsel at the time show that the Draft Permit was subject to negotiation.

The Draft Permit speaks for itself — the word “Proposed” is highlighted in boldface capital letters on every page. MFS was invited to comment on and participate in negotiations on the terms of the conditions contained in the Draft Permit.

{Id.

at 47:1-8.) MFS, however, never submitted suggested language on how to revise conditions 27 and 28. Moreover, in a letter dated February 11, 2008, Defendant Robbins replied to Mr. Zagami’s rejection without negotiation of conditions 27 and 28. Defendant Robbins noted that Mr. Zagami’s letter was:

[Sjurprisingly devoid of any recommended changes, which is unusual where a company has been provided with a draft permit and given an opportunity to comment. That is the primary purpose of providing a draft permit as opposed to simply issuing the permit in final form. If you wish to propose any changes, the Department would be happy to review them.

(Def. Ex. 74.)

In the context of this case, the fact that MFS was dissatisfied with conditions of the Draft Title V Permit does not prove that an adverse action occurred as a result of activity protected by the First Amendment. MFS chose not to enter into negotiations over the terms of conditions 27 and 28, and under applicable statutes and regulations had no right to dictate to the PaDEP the terms that it believed should have been included in the Title V Permit. As noted in the Statement of Facts,

supra,

Defendants were required to enforce state environmental regulations, and by law had the discretion to propose strict conditions to ensure compliance. Disagreement with lawful acts of a regulator does not give rise to the existence of an adverse action.

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Defendant Bedrin testified that even though MFS refused to participate in the revision of the permit, PaDEP officials continued to scrutinize the conditions in the Draft Permit and evaluate how to balance federal requirements with MFS’s demands. (Bedrin, 2/23/10, pm., 56:1-58:22.) In a letter dated February 25, 2008, Defendant Robbins proposed that the PaDEP would alter the language of the “shutdown” provisions. (Def. Ex. 76.) Again, in a letter dated April 22, 2008, Defendant Robbins attempted to modify condition 27 to address MFS’s objection. (Def. Ex. 78.) As Defendant Robbins wrote in his letter:

Rather than simply rejecting MFS’s requests to remove certain conditions from the draft compliance permit, the Department has attempted to engage MFS in negotiations over the permit terms with the hope of reaching a mutually agreeable resolution. In fact, your January 30, 2008 letter in response to receipt of the draft compliance was void of any recommended changes and simply criticized the Department and the terms of the draft permit. The Department responded to your January 30, 2008 letter with correspondence dated February 11, 2008, expressing its surprise at the lack of any recommended changes by MFS and indicating that such a response was uncommon where a draft permit was provided to a company for review and comment. The Department also explicitly invited you to comment on the terms, whereupon you insisted on the removal of Condition Nos. 027 and 028 in Section C of the draft compliance permit.

Once again, in an effort to establish terms for a compliance permit, the Department proposes to amend Section C, Condition No. 027. Specifically, the Department proposes a change in the wording of paragraph i to state:

If EPA disapproves the alternate test method based on the results of the validation test, EPA shall specify the deficiencies in writing. All review and approval will be governed by the review and approval procedures found in Section VIII of the Consent Decree, entered in the matter of

U.S.A. v. MFS, Inc.,

Civil Action No. 05-6656 (E.D.Pa.).

We believe this grants MFS considerable leeway in satisfying Department permitting requirements and strongly urge MFS to give due consideration to this proposed change.

(Def. Ex. 78 at 2-3.)

In addition, MFS claims that it never emitted malodors in the history of its operation of the mineral wool plant. For this reason, MFS contends that inserting condition 28 with its “shutdown” provision was an adverse action. However, the Jury found that each Defendant proved by a preponderance of the evidence that he “could reasonably believe that Plaintiff was emitting malodors caused by hydrogen sulfide based upon the evidence available to him.” (Doc. No. 112, Special Interrogatory Nos. 24, 28, 32, 36.) Consequently, the evidence demonstrates that Defendants had a substantial basis for inserting condition 28 into the Draft Permit and again were operating within their lawful authority.

44

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MFS also argues that it suffered an adverse action when Defendants sought to re-write the Consent Decree entered into with the EPA by including conditions 27 and 28. However, the evidence presented at trial confirms that it was within the PaDEP’s purview to require conditions beyond the minimal requirements set forth by the federal government in the Consent Decree. The Decree was not a substitute for any required state permit or approval. The Consent Decree provided in paragraphs 70 and 71 as follows:

70. This Consent Decree is not and shall not be construed as a permit issued pursuant to Subchapter V of the Clean Air Act, nor as a modification of any existing permit so issued, nor shall it in any way relieve Defendant [MFS] of its obligations to comply with permits, if any, otherwise required for any portion of its Facility, and with any other applicable federal, state and local law or regulation. This Consent Decree shall not be interpreted to excuse Defendant from any obligation to comply with any new permit, or modification of existing permits, in accordance with applicable federal, state and local laws and regulations.

71. Nothing herein shall be construed as relieving Defendant of the duty to comply with the Clean Air Act and its implementing regulations, and all applicable permits issued under that act and regulations.

(PI. Ex. 34 ¶¶ 70-71.)

MFS maintains that the 2007 Consent Decree “ensure[s] compliance by MFS with all aspects of the Mineral wool NESHAP.” (Doc. No. 166 at 67.) The record shows, however, that MFS never performed the alternative test method agreed upon in the Consent Decree. Accordingly, when the PaDEP issued the Draft Permit in 2008, it had legitimate concerns about the ability of MFS to comply with the regulations. Pursuant to 25 Pa.Code § 127.422, the PaDEP “will deny or refuse to revise or renew an operating permit to a source” if “[i]n the design of the source, provision is not made for adequate verification of compliance, including source testing or alternative means to verify compliance.” Despite this authority and the other powers it possessed, the PaDEP never denied MFS’s Title V Permit application, never ordered MFS to cease operations, never imposed a civil penalty on MFS, and was willing to negotiate the terms of the Draft Permit that were objectionable to MFS while MFS had the right to operate its plant under the permit shield. By April 22, 2008, Defendant Robbins and the PaDEP even agreed that the procedures in the Consent Decree would govern deficiencies arising from the alternate test method. The PaDEP and Defendants used great restraint over the years and worked with MFS to achieve compliance with mineral wool NESHAP and ma-lodor regulations rather than force the facility to cease operations. (Bedrin, 2/23/20, p.m., 115:21-24.) Consequently, discretion remained at all times with the PaDEP whether to issue the Draft Title V Permit and, if issued, to propose conditions 27 and 28.

MFS was never relieved of its obligation to abide by pertinent Pennsylvania statutes and regulations when it entered into the Consent Decree with the EPA. Similar to the lack of evidence of an adverse action arising from the Briefing Memorandum, there is no evidence that MFS would not have requested and attended the meeting with Secretary McGinty had it known that ultimately conditions 27 and 28 would be included in the Draft Permit. Under all these circumstances, conditions 27 and 28 do not constitute an adverse action or an act of retaliation, but were a reasonable exercise of the regulatory power entrusted

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to Defendants.

45

When viewing the evidence in the light most favorable to MFS, no reasonable jury could find that Defendants were motivated to include conditions 27 and 28 in the Draft Permit in retaliation for MFS making a request for and meeting with Secretary McGinty. Once again, MFS has failed to prove the second and third elements of a First Amendment retaliation claim.

iii.

Causation

MFS did not prove it suffered an adverse action, the first prerequisite of a retaliation violation. Even if it had proven retaliatory conduct, MFS has failed to prove the necessary element of causation. To establish the requisite causal connection in a First Amendment retaliation claim, a plaintiff must prove either 1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action or 2) a pattern of antagonism coupled with timing to establish a causal link.

DeFlaminis,

480 F.3d at 267;

see also Krouse v. Am. Sterilizer Co.,

126 F.3d 494 , 503-04 (3d Cir.1997). “In the absence of that proof the plaintiff must show that from the ‘evidence gleaned from the record as a whole’ the trier of fact should infer causation.”

DeFlaminis,

480 F.3d at 267 (citing

Farrell v. Planters Lifesavers Co.,

206 F.3d 271, 281 (3d Cir. 2000)).

According to MFS, during the trial, “MFS presented significant evidence for the [J]ury to find that Defendants’ adverse actions were motivated by MFS’s petition and meeting with Secretary McGinty because, among other things, the subsequent actions increased in intensity by being more antagonistic, more unfounded, and more harmful,” referring to the Briefing Memorandum and conditions 27 and 28 of the Draft Permit that were prepared and distributed in temporal proximity to the request for and meeting with the Secretary. (Doc. No. 166 at 70.) MFS’s position is unsupported by the evidence for several reasons.

First, MFS has failed to prove the elements of retaliatory action. Accordingly, regardless of the temporal proximity of the meeting with Secretary McGinty and the preparation of the Briefing Memorandum and the Draft Permit, there is no causal connection between a protected activity and an alleged retaliatory action.

Second, there is no evidence that Defendants Robbins, Bedrin, and Wejkszner individually proceeded with a pattern of antagonism toward MFS before or after the December 17, 2007 meeting with Secretary McGinty.

46

To the contrary, as described

*431

above, the evidence shows that Defendants attempted to work with MFS in order to put the mineral wool plant in a position where the PaDEP could lawfully and responsibly issue a Title V Operating Permit. This effort culminated in 2008, when Defendant Robbins corresponded with Mr. Zagami on several occasions, urging him to propose changes in the language of the Draft Permit rather than stonewalling the process. Defendants attempted to engage MFS in this process, but to no avail. MFS assumed a defensive position, and chose not to negotiate.

Defendants’ actions in regard to the Memorandum and Draft Permit were not unfounded. Secretary McGinty requested the Briefing Memorandum because she granted the request of MFS for a meeting with her. Defendant Robbins, as an attorney preparing a memorandum for a client, had latitude on the scope of its content within the framework of the template. Moreover, Defendants had authority under applicable statutes and regulations to insert conditions 27 and 28 in the Draft Title V Permit. MFS never conducted the alternative test method agreed upon with the EPA in the Consent Decree, never complied with mineral wool NESHAP or resolved the odor problem. Rather than forcing MFS to remain closed, which it had voluntarily done in February 2006 even before the Consent Decree was finalized, after the meeting with Secretary McGinty, Defendants exercised their lawful discretion as employees of the PaDEP and issued an appropriate Draft Permit. Pennsylvania law is clear. The PaDEP may employ actions “it may deem necessary or proper for the effective enforcement of this act and the rules or regulations promulgated under this act.” 35 P.S. § 4004(27).

When regulators such as Defendants propose lawful terms in a Draft Permit, or draft an internal memorandum for their supervisor, or in the case of an attorney for his or her client, this conduct is not evidence of antagonism. If such conduct of a regulator could amount to antagonism under the law, it would inhibit a public employee from performing his or her duties in the best interest of the public. The kind of inference MFS seeks to be drawn from the evidence cannot be countenanced.

Additionally, the evidence does not show that Defendants’ actions after the meeting with Secretary McGinty harmed MFS to the extent that it raises an inference of antagonism. The record is clear that MFS ceased operations on February 16, 2006, nearly two years before the meeting with Secretary McGinty and the issuance of the Draft Permit. In a letter dated September 5, 2005 to Assistant U.S. Attorney Chris Day, Mr. Zagami explained, “I actually advised you that, in light of EPA’s actions, EPA is leaving MFS with no alternative except to shut down.” (Def. Ex. 51 at 2.) Despite Mr. HaufPs testimony that Defendants’ actions also caused the plant to shut down in 2006, the closure occurred well before the meeting with Secretary McGinty in December 2007. Mr. Hauff testified when asked why MFS ceased operations: ‘Well, because of the uncertainty of receiving our operating permit. We were coming up on certain contractual limitations or points of contract with not only our customers but also some of our vendors, and we had to have assurance that we were going to be able to supply them beyond those points of the contract. So upper management decided, in order to achieve some of that — those goals, we’d

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shut the plant down.” (Hauff, 2/17/10, p.m., 61:9-16.) The threat of an exorbitant fíne by the EPA also contributed to the decision to shut down the plant in 2006.

(Id.

at 61:18-19.) Given that MFS closed its plant well before requesting a meeting with Secretary McGinty, that the meeting resulted in a change of the position of the PaDEP to one of issuing a Draft Permit, that after the meeting MFS was not entitled under the law to dictate the terms of a renewed Title V Permit, and that Defendants were acting within their lawful scope of authority, no inference of antagonism, let alone a pattern of antagonism, arises from the evidence. In sum, MFS has not proven a causal connection between any action, let alone an adverse one, and First Amendment protected activity.

Finally, when a plaintiff has brought a First Amendment retaliation claim against a government official in his individual capacity, the Third Circuit has poignantly observed:

A court must be diligent in enforcing these causation requirements because otherwise a public actor cognizant of the possibility that litigation might be filed against him, particularly in his individual capacity, could be chilled from taking action that he deemed appropriate and, in fact, was appropriate. Consequently, a putative plaintiff by engaging in protected activity might be able to insulate himself from actions adverse to him that a public actor should take. The point we make is not theoretical as we do not doubt that public actors are well aware that persons disappointed with official decisions and actions frequently bring litigation against the actors responsible for the decisions or actions in their individuals capacities, and the actors surely would want to avoid such unpleasant events. Thus, it would be natural for a public actor to attempt to head off a putative plaintiff with the unwarranted expenditure of public funds. Courts by their decisions should not encourage such activity and, by enforcing the requirement that a plaintiff show causation in a retaliation case, can avoid doing so as they will protect the public actor from unjustified litigation for his appropriate conduct. In this regard, we recognize that often public actors such as those in this case must make a large number of decisions in charged atmospheres thereby inviting litigation against themselves in which plaintiffs ask courts to second guess the actors’ decisions.

DeFlaminis,

480 F.3d at 267-68.

This case falls squarely within the admonition of the Third Circuit. Defendants acted appropriately in a “charged atmosphere.” At the same time that the Pa-DEP and Defendants had to assuage the feelings of angry residents living close to the plant, the Department and its employees attempted to enforce environmental statutes and regulations without forcing a viable business in Pennsylvania to shut down. Defendants’ actions were appropriate given the circumstances. MFS failed to prove the element of causation and failed to show that Defendants took any impermissible adverse actions against them for engaging in protected activity.

47

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B.

Defendants Are Entitled To Judgment

As A

Matter Of Law On MFS’s Due Process Claims

In response to Special Interrogatory Nos. 4, 5, and 7 on the verdict form (Doc. No. 112), the Jury found that MFS proved by a preponderance of the evidence that Defendants DiLazaro, Bedrin, and Robbins “violated Plaintiffs right to procedural due process under the Fourteenth Amendment.”

48

(Doc. No. 112.) In response to Special Interrogatory Nos. 8-11 (Doc. No. 112), the Jury found that MFS proved by a preponderance of the evidence that each Defendant “violated Plaintiffs right to substantive due process under the Fourteenth Amendment.” (Doc. No. 112.) The Fourteenth Amendment prohibits state action that “deprive[s] any person of life, liberty, or property, without due process of law,” and encompasses both a procedural and substantive due process component. U.S. Const, amend. XIV, § 1. For the following reasons, there is insufficient evidence from which a reasonable jury could find liability on the two due process claims.

49

i.

Procedural Due Process

To prove a procedural due process violation, a plaintiff must demonstrate 1) the asserted individual interests are encompassed within the Fourteenth Amendment’s protection of life, liberty, or property, and 2) if protected interests are implicated, whether the procedures available provide plaintiff with due process of law.

See Robb v. City of Phila.,

733 F.2d 286, 292 (3d Cir.1984);

Hill v. Borough of Kutztown,

455 F.3d 225, 233-34 (3d Cir. 2006). Procedural due process is the “opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ”

City of Los Angeles v. David,

538 U.S. 715, 717 , 123 S.Ct. 1895 , 155 L.Ed.2d 946 (2003) (quoting

Mathews v. Eldridge,

424 U.S. 319, 335 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976)).

The Supreme Court has set forth three factors a court should consider in determining whether a party received due process of law: 1) the private interest that •will be affected by the official action, 2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value of substitute procedural safeguards, and 3) the government’s interest, including the fiscal and administrative burdens that additional and substitute procedures would entail.

David,

538 U.S. at 716 , 123 S.Ct. 1895 .

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The first step in the analysis must be to “identify the exact contours of the underlying right Plaintiff[] claim[s] was violated to determine whether [he or she has] alleged deprivation of a constitutional right at all.”

Culinary Service of Delaware Valley, Inc. v. Borough of Yardley,

385 Fed.Appx. 135, 141 (3d Cir.2010). “The procedural component of the Due Process Clause does not protect everything that might be described as a ‘benefit’ .... [Plaintiff] ‘must, instead, have a legitimate claim of entitlement to it.’ ”

Town of Castle Rock, Colo. v. Gonzales,

545 U.S. 748, 756 , 125 S.Ct. 2796 , 162 L.Ed.2d 658 (2005) (quoting

Board of Regents of State Colleges v. Roth,

408 U.S. 564, 577 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972)). Second, “[o]nce we determine that the interest asserted is protected by the Due Process Clause, the question then becomes what process is due to protect it.”

Shoats v. Horn,

213 F.3d 140, 143 (3d Cir.2000) (citing

Morrissey v. Brewer,

408 U.S. 471, 481 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972)).

a.

Fourteenth Amendment Interests

1.

Property Interest

Here, MFS claims a property interest in the “control, use and enjoyment of the mineral wool plant, the permits associated with that plant and the business itself for purposes of its procedural due process claim.”

50

(Doc. No. 166 at 101.)

The Third Circuit has held that a business itself constitutes a protected property right under the Fourteenth Amendment. In

College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board,

the Third Circuit explained:

Clearly, a business is an established property right entitled to protection under the Fourteenth Amendment.

See, e.g., Duplex Printing Press Co. v. Deering,

254 U.S. 443, 465 , 41 S.Ct. 172, 176 , 65 L.Ed. 349 (1921) (finding that a “business ... is a property right, entitled to protection against unlawful injury of interference ----”);

United States v. Tropiano,

418 F.2d 1069, 1076 (2d Cir.1969) (“The right to pursue a lawful business including the solicitation of customers necessary to the conduct of such business has long been recognized as a property right within the protection of the Fifth and Fourteenth Amendments to the Constitution.”) (citations omitted);

Small v. United States,

333 F.2d 702, 704 (3d Cir.1964) (“The right to pursue a lawful business or occupation is a right of property which the law protects

*435

against intentional and unjustifiable interference. A cause of action based upon such an interference is analogous to one based upon unlawful interference with existing contracts, and is governed by the same principles.”).

131 F.3d 353, 361 (3d Cir.1997) (citations omitted).

Moreover, in cases involving governmental permission for some intended use of land such as permits, those matters implicate a fundamental property interest in the ownership of land.

Independent Enterprises,

103 F.3d at 1179 n. 12. Accordingly, MFS has adequately shown that it had a property interest subject to procedural due process protection in the mineral wool business and in the permit it sought in order to remain in business.

2.

Liberty Interest

MFS also claims a liberty interest in its reputation coupled with its right to pursue a business occupation without undue and arbitrary governmental interference. (Doc. No. 166 at 102-03.) In

Paul v. Davis,

the Supreme Court explained that in the due process context, injury to reputation alone does not implicate a protected liberty interest under the Fourteenth Amendment. 424 U.S. 693 , 96 S.Ct. 1155 , 47 L.Ed.2d 405 (1976). In other words, “[d]efamation, by itself, is a tort actionable under the laws of most States, but not a constitutional deprivation.”

Siegert v. Gil-ley,

500 U.S. 226, 233 , 111 S.Ct. 1789 , 114 L.Ed.2d 277 (1991);

see also Sturm, v. Clark, J.J.,

835 F.2d 1009, 1012 (3d Cir. 1987) (“Absent the alteration or extin-guishment of a more tangible interest, injury to reputation is actionable only under state defamation law.”).

To make out a due process claim for deprivation of a liberty interest in reputation, a plaintiff must satisfy the “stigma-plus” test. Plaintiff must “show a stigma to his reputation plus deprivation of some additional right or interest.”

Hill,

455 F.3d at 236 . In order “[t]o satisfy the ‘stigma’ prong of the test, it must be alleged that the purportedly stigmatizing statements 1) were made publically, and 2) were false.” Id.;

see also Logan v. Salem Baptist Church of Jenkintown,

No. 10-144, 2010 WL 3155261 , at *4 (E.D.Pa. July 30, 2010).

MFS has presented evidence that meets the “stigma” element of the test with respect to Defendant DiLazaro. Viewing the evidence in the light most favorable to MFS, there is evidence that Defendant DiLazaro made public comments concerning MFS, including that MFS was a known air polluter, a known nuisance, the source of odors in Lower Saucon region, and an emitter of benzene, which was a toxic, cancer-causing agent. (Hauff, 2/17/10, p.m., 11:7-11.) Mr. Hauff, the representative of MFS, was not present when Defendant DiLazaro made these comments in early 2003. Instead, Mr. Hauff read them in a newspaper article reporting on a Lower Saucon Town Hall meeting. (Hauff, 2/18/10, a.m., 9:10-12.) Defendant DiLaza-ro implied in his testimony that the article contained troubling information, but insisted that it was taken out of context. From all this evidence the Jury may have inferred that at least in part, false, public information was imparted by Defendant DiLazaro. Thus, the stigma part of the test is satisfied as to Defendant DiLazaro.

However, there is no evidence that Defendants Bedrin or Robbins made similar comments about MFS. Accordingly, Defendants Bedrin and Robbins would not be liable for deprivation of a liberty interest in reputation.

51

*436

MFS contends that it has presented evidence from which a reasonable jury could conclude that it was deprived of an additional right or interest which is the “plus” element of the test. In this regard, MFS argues that the additional rights or interests adversely affected were the right to be protected against First Amendment retaliation, the right to equal protection under the Fourteenth Amendment, and the liberty and property interests described

swpra.

(Doc. No. 166 at 103.)

With respect to the liberty interest, MFS’s claim is not well-defined. MFS is required to prove in the first instance that it was subject to “stigma” plus the deprivation of some additional right or interest before a liberty interest is established. A reputational liberty interest cannot be the additional interest under the “stigma-plus” test because that would be syllogistically impossible and the equivalent of putting the cart before the horse. Some other interest or right must be adversely affected, along with stigma to reputation before a liberty interest is shown to exist. Until a deprivation of this additional interest or right is proven, no liberty interest is present.

52

With respect to a property interest, the Court has already held,

supra,

that MFS has a protected property right in its business and the Title V Permit. This property right satisfies the “plus” element of the “stigma-plus” test. Therefore, MFS has presented evidence to satisfy the “stigma-plus” test in regard to Defendant DiLaza-ro and has accordingly proven that it has a liberty interest subject to procedural due process protection.

b.

Due Process of Law

Having established protected property and liberty interests in its business and the Title V Operating Permit, the next element that MFS must prove is that the procedures available to it did not afford it due process or the opportunity to be heard at a meaningful time and in a meaningful manner.

Under Third Circuit precedent, a state affords requisite due process when it provides reasonable remedies to rectify legal errors by an administrative body.

Cohen v. City of Philadelphia,

736 F.2d 81, 86 (3d Cir.1984),

cert. denied,

469 U.S. 1019 , 105 S.Ct. 434 , 83 L.Ed.2d 360 (1984). An administrative appeal procedure, with a mechanism for subsequent judicial review, is constitutionally sufficient.

Id.) see also Midnight Sessions, Ltd. v. City of Philadelphia,

945 F.2d 667, 680-82 (3d Cir. 1991).

In Pennsylvania, the Environmental Hearing Board (EHB) exists to consider and rule upon administrative appeals from final PaDEP actions, including final actions affecting permits. 35 P.S. § 7514(c). Regulations at 25 Pa.Code Chapter 1021 govern practice and procedure before the EHB. Central to the process are on-the-record hearings, conducted pursuant to the Administrative Agency Law, 2 Pa.C.S. § 501

et seq.,

as well as agency-specific EHB regulations,

see

35 P.S. § 7514; 25 Pa.Code §§ 1021.116-1021.133. EHB adjudications are subject to judicial review by the Commonwealth Court of Pennsylvania.

See

2 Pa.C.S. § 702; 42 Pa.C.S. § 763.

*437

MFS argues that in several situations the evidence shows that it was deprived of procedures required under the due process clause. (Doc. No. 166 at 103-113.) First, in regard to the appeal of the FEO in 2001, MFS argues that the appeal was not meaningful. The evidence shows that MFS was aware of EHB procedures and utilized its administrative remedies when it appealed the January 24, 2003 FEO. Directions on how to appeal the FEO are featured directly above Defendant DiLazaro’s name on the FEO. (PI. Ex. 11.) In this situation, MFS utilized available procedure and appellate remedies, which led in part to the PaDEP rescinding the FEO in 2004. It is true that the FEO was issued on a Friday based on a Notice of Violation (NOV) issued in November 2001 and that MFS was required to respond in one business day.

53

However, the FEO was a final action or order and MFS exercised its right to appeal to the EHB. The comments of the EHB Judge that Defendants DiLazaro and Robbins were acting “childish”' and “evidenced hostility” did not undermine the right to appeal the FEO. MFS was represented by counsel before and after filing the appeal and had a meaningful opportunity to be heard on appeal. The appeal was withdrawn by MFS only because a settlement was reached with the PaDEP.

Second, MFS argues that it did not have the right to appeal the Draft Title V Permit containing conditions 27 and 28.

54

(Doc. No. 166 at 112-13.) MFS overlooks that fact the Draft Permit was merely a proposal subject to negotiation. Had MFS chosen to negotiate the terms of the Draft, it would have been afforded a meaningful opportunity to do so in a meaningful manner. MFS chose not to negotiate. MFS also had the right to request that the PaDEP issue the Draft Permit in final form. It would have been a final Order, and could have been challenged in an appeal to the EHB. Once again, MFS made the voluntary decision not to request that the Draft Permit be issued as a final one.

Moreover, in connection to the Title V Permit renewal process, Pennsylvania law provides that if an application to renew a Title V Permit is duly filed, but the permit is not renewed prior to its expiration, the party seeking renewal has the right to challenge the PaDEP’s failure to renew the permit by filing an appeal to the EHB pursuant to 25 Pa.Code § 127.446(d),

supra.

Under this provision of the Code, MFS had the right to appeal the Pa-DEP’s failure to issue the Title V Permit within thirty days of October 31, 2003. For the next four years, MFS chose not to appeal the failure to renew the permit

*438

to the EHB and to take advantage of this procedure afforded to an applicant under Pennsylvania law. Defendant Robbins even reminded Mr. Zagami in a letter dated October 24, 2007, “MFS has the option of requesting that the Department issue a decision on its Title V renewal application without submitting any additional information.” (Def. Ex. 69 at 3.) After making the request, MFS would be entitled to file an appeal to the EHB, but MFS chose not to make the request and pursue an appeal.

Despite the decision not to file an appeal regarding the Title V Permit, MFS still had available a substitute safeguard to allow it to continue to operate. The evidence shows that a permit renewal applicant may choose to continue to operate under its existing Title V Permit while its renewal application is pending pursuant to the “permit shield” provision in its Title V Permit and under 25 Pa.Code § Í27.446(c),

swpra.

The decision by MFS in 2006 not to operate its plant under the permit shield was a voluntary business decision made by MFS, and its reluctance to avail itself of an administrative remedy cannot be the basis of a violation of procedural due process.

Finally, MFS argues that procedural due process was violated by Defendants making material misrepresentations and omissions in the Briefing Memorandum given to Secretary McGinty in order to frustrate the meeting with her. There is no evidence that the meeting was frustrated in any manner. As noted at length above, Mr. Zagami requested the meeting with Secretary McGinty. On December 17,'2007, Mr. Zagami attended a meeting in Secretary McGinty’s office, where he was afforded the opportunity to describe the status of MFS’s Title V Permit application and the history of MFS’s interaction with the PaDEP. The record is clear that this meeting with Secretary McGinty was meaningful in time and manner, as evidenced by the subsequent issuance of and the attempted negotiations over the Draft Title V Permit. A private meeting with a public employee in charge of a department does not trigger a right to appeal nor do mere negotiations over a draft permit.

Consequently, the evidence shows that a full judicial mechanism was in place to allow MFS to challenge the administrative decision on the renewal of the Title V Permit.

See, e.g., Midnight Sessions, Ltd. v. City of Phila.,

945 F.2d 667, 680 (3d Cir.1991) (finding that a full judicial mechanism was available and thus rejected a procedural due process challenge). Contrary to MFS’s argument, there is no evidence that these procedures were “sham procedures.” Accordingly, the Court will enter judgment as a matter of law in favor of Defendants DiLazaro, Bedrin, and Robbins on MFS’s procedural due process claim since no reasonable jury viewing the evidence in the light most favorable to MFS could find otherwise.

ii.

Substantive Due Process

In response to Special Interrogatory Nos. 8-11 on the verdict form (Doc. No. 112), the Jury found that MFS proved by a preponderance of the evidence that Defendants DiLazaro, Bedrin, Wejkszner, and Robbins “violated Plaintiffs right to substantive due process under the Fourteenth Amendment.” (Doc. No. 112.) The Due Process Clause of the Fourteenth Amendment “contains a substantive component that bars arbitrary, wrongful government action ‘regardless of the fairness of the procedures used to implement them.’ ”

Zinermon v. Burch,

494 U.S. 113, 125 , 110 S.Ct. 975 , 108 L.Ed.2d 100 (1990) (quoting

Daniels v. Williams,

474 U.S. 327, 331 , 106 S.Ct. 662 , 88 L.Ed.2d 662 (1986));

Boyanowski v. Capital Area Intermediate Unit,

215 F.3d 396, 399 (3d Cir.2000). To establish a substantive due

*439

process claim under 42 U.S.C. § 1983 , plaintiff must prove 1) the particular interest at issue is protected by the Fourteenth Amendment, and 2) the government’s deprivation of that protected interest “shocks the conscience.”

Gottlieb v. Laurel Highlands Sch. Dist.,

272 F.3d 168, 172 (3d Cir.2001).

To meet this standard, MFS must present evidence of state action that “ ‘shocks the conscience,’ which encompasses ‘only the most egregious official conduct.’”

Chainey v. Street, 523 F.3d

200, 219 (3d Cir.2008) (quoting

United Artists Theatre Circuit, Inc. v. Twp. of Warrington,

316 F.3d 392, 400 (3d Cir.2003));

see also Ryan v. Lower Merion Twp.,

205 F.Supp.2d 434 (E.D.Pa.2002) (finding that actions of township officials in arbitrarily delaying decision and ultimately denying application for taproom permit could satisfy “shock the conscience” standard). “The conduct must be ‘intended to injure in some way unjustifiable by any government interest.’ ”

Newman v. Beard,

617 F.3d 775, 782 (3d Cir.2010) (quoting

County of Sacramento v. Lewis,

523 U.S. 833, 849 , 118 S.Ct. 1708 , 140 L.Ed.2d 1043 (1998)).

The Third Circuit has held that three standards may support a finding that government action shocks the conscience: 1) deliberate indifference; 2) gross negligence or arbitrariness; or 3) intent to cause harm.

Phillips v. County of Allegheny,

515 F.3d 224 (3d Cir.2008).

55

The Third Circuit has held that “where the state actor had ample time for deliberation before engaging in the allegedly unconstitutional conduct, the appropriate standard will be deliberate indifference.”

Patrick v. Great Valley Sch. Dist.,

296 Fed.Appx. 258, 261-62 (3d Cir.2008). The Supreme Court has directed that “[djeliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking.”

Lewis,

523 U.S. at 850 , 118 S.Ct. 1708 .

The Third Circuit has observed that substantive due process “is an area of law famous for its controversy, and not known for its simplicity.”

DeBlasio v. Zoning Bd. of Adjustment, 53

F.3d 592, 598 (3d Cir.1995) (internal quotation omitted). It is clear, however, that the first step in evaluating a due process claim is to identify the exact contours of the underlying right a plaintiff claims was violated.

Chai-ney,

523 F.3d at 219 ;

see Reno v. Flores,

507 U.S. 292, 302 , 113 S.Ct. 1439 , 123

*440

L.Ed.2d 1 (1993) (finding that analysis “must begin with a careful description of the asserted right”);

Kaucher v. County of Bucks,

455 F.3d 418, 423 (3d Cir.2006). In this case, MFS has asserted that it is entitled to substantive due process protection in regard to both property and liberty interests. The Court will discuss each one in turn.

a.

Fourteenth Amendment Interests

1.

Property Interest

“While property interests are protected by procedural due process even though the interest is derived from state law rather than the Constitution, substantive due process rights are created only by the Constitution.”

Stubbs v. Nutter,

No. 10-3200, 2010 WL 3421015 , at *4 (E.D.Pa. Aug. 30, 2010) (quoting

Regents of the Univ. of Michigan v. Ewing,

474 U.S. 214, 229 , 106 S.Ct. 507 , 88 L.Ed.2d 523 (1985) (Powell, J. concurring)). Thus, “not all property interests worthy of procedural due process protection are protected by the concept of substantive due process.”

Reich v. Beharry,

883 F.2d 239, 244 (3d Cir.1989). Rather, “for a property interest to be protected for purposes of

substantive due process,

it must be ‘fundamental’ under the United States Constitution.”

Hill,

455 F.3d at 235 n. 12 (emphasis in original). If the right is not fundamental, there is no substantive due process issue and state conduct will be upheld so long as the state complies with procedural due process.

Nicholas v. Pa. State Univ.,

227 F.3d 133, 142 (3d Cir.2000).

Here, MFS claims a property interest “in the control, use and enjoyment of its property and in the operation of the mineral wool manufacturing plant on that property.” (Doc. No. 166 at 80.) The Third Circuit has stated that “ownership is a property interest worthy of substantive due process protection.”

DeBlasio,

53 F.3d at 600 ;

see Nicholas,

227 F.3d at 141 (“[W]e have so far limited non-legislative substantive due process review to cases involving real property ownership.”);

Wrench Transp. Sys., Inc. v. Bradley,

340 Fed.Appx. 812 , 815 (3d Cir.2009) (finding that real property interests can be protected by substantive due process);

M & M Stone Co. v. Pa. Dept. of Envtl. Prot.,

No. 07-4784, 2008 WL 4467176 , at *21 (E.D.Pa. Sept. 29, 2008) (recognizing that zoning decisions, building permits, or other governmental permission required for some intended use of land owned by the plaintiffs implicate the fundamental property interest in

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