Politics, resignations add wrinkle to area's DEP office
February 20, 2012 8:00 PM
William Darr, resigned DEP regional counsel
By Don Hopey Pittsburgh Post-Gazette
It's been a rough six months for attorneys at the state Department of Environmental Protection's regional office in Pittsburgh.
The Corbett administration forced one longtime legal leader to resign, and its appointment of a replacement was thwarted by federal conflict-of-interest rules.
Together, those departures have undermined the morale of the remaining attorneys in the southwest region, according to several people with knowledge of the issues, and pushed waves of concern through DEP offices across the state about the departure of a much-respected colleague and the subsequent politicization of the regional counsel job.
The turmoil has occurred in one of the state's most legally complicated environmental regions and could, in time, affect work on administrative orders and enforcement cases involving coal mining, air and water pollution, and oil and gas drilling and development, observers say.
DEP's southwest region has been without a permanent regional counsel since early November, when William Darr, the Corbett administration's appointee to the legal and administrative leadership position, resigned because of a financial link to Consol Energy. That followed the administration's forced resignation in July of longtime regional counsel Diana Stares.
State General Counsel Stephen Aichele appointed Mr. Darr regional counsel effective Sept. 27 at an annual salary of $105,018, according to state employment documents the Post-Gazette obtained through a Right-To-Know Law request.
Mr. Darr, a veteran attorney in private practice in Indiana County, had been that county's Republican chairman, a member of the Republican State Committee and chair of the party's southwestern Pennsylvania caucus, positions he relinquished to take the DEP job.
But he resigned the appointment six weeks later, on Nov. 10, rather than submit required federal conflict-of-interest paperwork, said individuals familiar with the workings of the DEP regional office. The paperwork would have shown that he is eligible to receive a pension from Consol because of his legal work in the 1980s and 1990s for the Rochester & Pittsburgh Coal Co., which Consol bought in 1998.
Receipt of such benefits is a violation of federal conflict-of-interest law that aims to prevent state regulators from receiving any financial considerations from mining companies they oversee.
Consol, the state's largest underground coal mining company, has been a party to dozens of past and present legal actions involving the DEP in the 10-county southwest region.
The appointment raises questions about how carefully the Corbett administration vetted him for the job and about the politics involved in filling a position typically held by career lawyers who are not replaced when the occupant of the governor's mansion changes.
Tim Potts -- a former Democratic legislative staffer and co-founder of Democracy Rising PA, a government watchdog group in Harrisburg -- said the Corbett administration's attempt to politicize the chief counsel's job by appointing Mr. Darr is a disservice to Pennsylvanians who expect unbiased enforcement of public health and environmental regulations.
"The law should be the law. When you substitute political connections for legal and policy expertise, you're inviting trouble," Mr. Potts said.
Mr. Darr -- who has returned to his private practice, which includes real estate, business, commercial transactions and natural resources law -- did not respond to numerous phone messages requesting comment. Eric Shirk, a spokesman for Gov. Tom Corbett, declined to comment on any aspect of the issue, citing the confidentiality of personnel matters. And Mr. Aichele did not respond to a request for an interview on the state's vetting process for legal appointees.
DEP spokeswoman Katy Gresh said the department does not talk publicly about personnel matters. Ms. Gresh also has refused numerous requests to discuss the resignation of Ms. Stares, Mr. Darr's predecessor as chief regional counsel, who was pushed out of her job in July after 31 years with the department.
Ms. Stares was forced to resign after she refused an order to fire a DEP attorney in the southwest regional office who, coincidentally, was working on a case involving a coal mine owned by Consol Energy.
That case involves the company's appeal of a state order to pay more than $20 million to replace the Duke Lake Dam at Ryerson Station State Park in Greene County.
A state Department of Conservation and Natural Resources study determined that Consol's Bailey Mine caused subsidence that cracked the dam. The company disputes that finding and has appealed to the state Environmental Hearing Board.
According to sources familiar with DEP operations, Mr. Aichele ordered DEP chief counsel David Raphael to fire the DEP attorney working on the Consol dam damage case over a legal strategy that had been previously approved. Mr. Raphael, in turn, directed Ms. Stares to carry out that order, and she refused.
On July 19, Mr. Raphael and a state Human Resources Bureau official drove from Harrisburg to Pittsburgh, walked into DEP's regional office on Washington's Landing and told Ms. Stares she could either resign or be fired. After she signed a letter of resignation, she was escorted out of the building as several attorneys on her staff and other DEP employees wept.
"It was a legal bombshell when it happened," said one lawyer who asked not to be identified because of his dealings with the DEP.
The DEP attorney on the Consol dam damage case was subsequently called to Harrisburg and chastised in a meeting with Mr. Aichele but not fired. Mr. Aichele has not responded to questions about that meeting, and the DEP attorney has refused to talk with the Post-Gazette.
Ms. Stares, who now works for Washington & Jefferson College, has not returned numerous calls asking for comment on the circumstances of her resignation. She had an impeccable reputation at the DEP, said Susan Shinkman, DEP's chief counsel during the Rendell administration and Ms. Stares' boss for six years.
"She was excellent, a good lawyer and great office manager," Ms. Shinkman said.
Howard Wein, an environmental attorney with Buchanan Ingersoll & Rooney in Pittsburgh who in the 1980s worked with Ms. Stares at what was then the state Department of Environmental Resources, described her as "a very capable administrator of the office."
The acting chief regional counsel since Mr. Darr's departure has been veteran DEP attorney Bruce Herschlag, who oversees a staff of 12 attorneys and four legal assistants and support personnel. DEP attorneys work on complaints, violations, consent orders and settlements involving a variety of environmental issues, including mining, air and water pollution, and the rapidly growing issues surrounding Marcellus Shale gas development and regulation.
Several environmental attorneys in private practice say the DEP's legal contingent in the southwest region works hard and, according to one, is "among the best at any of the DEP's regional offices."
But the upheavals at the top, the morale problems they've caused and having one less attorney in the region have made the DEP attorneys' jobs more difficult.
One observer who spoke on background because of his ongoing work with the department said he's heard grumbles about the "slower pace" of legal work. He said DEP attorneys saw what happened to Ms. Stares and are being careful, "working hard and keeping their heads down." Attempts to discuss the issue with DEP attorneys have been unsuccessful.
Although the observer said Mr. Herschlag is doing a good job, he said the acting regional counsel hadn't received a vote of confidence from the administration in the form of the permanent appointment.
Robert Ging, an environmental attorney in Somerset County, said the firing of Ms. Stares seems to have had a "chilling effect" on the department throughout the state.
"Everyone seems afraid to do their job, regardless of what level they are in the bureaucracy," he said, noting that the department has failed to issue a finding within its own 45-day deadline on a water-loss complaint he filed for a client several months ago. "When the lawyers aren't being guarded, they're not being responsive."
Emily Collins, supervising attorney at the University of Pittsburgh's Environmental Law Clinic who has worked on the Consol-Duke Lake case, said it is difficult to assess the legal staff's performance since Ms. Stares left but there seems to be concern about the future of the regional operation.
"Morale is noticeably low," Ms. Collins said. "There is a great deal of uncertainty."
Zelda Curtiss, a DEP attorney in the southwest district office for 28 years until her retirement four years ago, said DEP attorneys across the state were concerned when they heard about what happened to Ms. Stares.
"This is a horrible injustice," said Ms. Curtiss, who has known Ms. Stares for more than 30 years, "and no way to run a government agency."
Ms. Gresh discounted such observations, saying those outside the department "are not in a position to offer informed comment." She said the DEP has 70 lawyers statewide who are hardworking and productive.