Full opinion text
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 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 Environmental 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.) 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; 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. 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. 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 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.) 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 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, 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. In the appeal, 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; 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. 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 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)” (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.) Thereafter, 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 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.) 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. 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. 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. 2) MFS has failed to demonstrate compliance with the emission limits specified in 40 C.F.R. § 6S.1178. 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. 4)MFS has failed to submit an operations, maintenance, and monitoring plan as required by 40 C.F.R. § 63.1187. 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. (PL Ex. 88. at 1.) Citing the Air Resources Regulations, Defendant DiLazaro advised MFS that the 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, 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. Furthermore, Section 422 of the Department’s Air Resources Regulations, 25 Pa.Code § 127.422 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). The Department renewed that request in a letter dated August 15, 2005 to Paul Bruder, Esquire. 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 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 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. (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. In the Motion for Entry of Consent (PI. 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-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. 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-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.” 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 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. 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 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.) 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 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 operations 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 stemming from the November 8, 2001 NOV. (PL Ex. 11; Def. Ex. 12.) As described abo