By Jared Sichel | PA Independent
HARRISBURG — Eva Giordano just woke up from a four-year nightmare.
After a drawn-out legal battle in which the Pennsylvania Department of Environmental Protection, or DEP, sued the Huntingdon resident for environmental violations committed by her ex-husband, an administrative court last week ordered DEP to reimburse Giordano nearly $12,000 in legal fees.
It began in July 2008, when Giordano opened her mail one day, surprised to see a letter from DEP — Pennsylvania’s version of the federal EPA.
As she scanned the letter, she was confused. DEP was assessing a “civil penalty” for water pollution against her and her estranged husband, Kirk Danfelt, for $41,250.
DEP was going after Danfelt for several blatant violations of the Clean Streams Law, which aims to reduce pollution of natural water sources. In 2007, according to court documents, when Danfelt undertook logging projects at various sites in Pennsylvania, he failed to ensure that his activities, such as loosening sediment and soil, wouldn’t pollute nearby water.
But whether the money came from Danfelt or Giordano, DEP didn’t care. That penalty had to be collected.
Giordano and Danfelt married in April 2007, but they separated shortly thereafter, and divorced in September 2009. Danfelt has a criminal history and Giordano, a single mother of two adult children, is, according to her attorney Greg Jackson, raising one of her grandsons on a minimum-wage job. By the time Giordano learned from DEP in July 2008 that the agency was suing her, she and Danfelt had already separated.
She had no knowledge of her ex-husband’s logging violations. Some occurred before they were married. DEP found no evidence that Giordano had any involvement with Danfelt’s activities.
Giordano could not be reached, but PA Independent spoke with Jackson.
According to Jackson, Danfelt was unreliable and Giordano had assets. If DEP could impose enough legal costs on her, maybe she’d settle, and they could collect at least a portion of the fine.
But how did DEP’s attorney, Susana Cortina de Cardenas, legally justify a lawsuit against Giordano, considering that she had no involvement in Danfelt’s activities?
Because, as the agency told the Environmental Hearing Board — a four-judge trial court that hears appeals related to DEP cases — courts “have discussed and assigned responsibility to spouses routinely.”
Or as Jackson summed up DEP’s position towards Giordano: “Pay money for something you didn’t do, or incur costs defending yourself for something you didn’t do.”
Even though she knew nothing about the violations? Even though the violations occurred before Giordano and Danfelt were married?
According to DEP, yes. Its attorneys argued that, “when that spouse has benefited from the actions of the other spouse,” the government could also go after the innocent spouse’s assets.
Additionally, DEP, said, once Giordano learned about the lawsuit, she did not reply in a timely manner, and had a “long history of noncompliance with applicable procedural requirements.”
The four appointed judges, led by Chief Judge Thomas Renwand, who sit on the board weren’t convinced. They called DEP’s argument a “stretch.”
In August 2009, the board gave DEP a default, or accelerated, judgment against Danfelt, for the full $41,250, because Danfelt “evidently disappeared after the complaint.” Even after the board ruled against him, he still didn’t pay up. According to Jackson, he still hasn’t.
After the board ruled against Danfelt, DEP continued to pursue Giordano.
To add insult to injury, in August 2011, DEP summoned Giordano and Jackson to Harrisburg for a deposition. Not only did Giordano have to make the 90-mile drive from Huntingdon, she missed a day of work.
And for what? Jackson said that DEP lawyers at the deposition asked Giordano questions to which they already had answers and questions that bore no relevance to the case, such as how many assets her relatives had.
After three years, thousands of dollars in legal fees, hundreds of hours of wasted time, and numerous conferences, briefs, hearings, and motions, in September 2011 DEP offered to settle with Giordano for under $1,000, but only if she would “provide more information on Danfelt.”
Giordano refused to settle, and on Sept. 22,2011, DEP abruptly withdrew its lawsuit against her.
But after nearly four and a half years of legal fees, Giordano owed $11,905. She asked the court in October 2011 to order DEP to pay her attorney fees.
It took nearly another year, but last Friday, the board ordered DEP to repay Giordano the full $11,905.
The board hammered DEP, accusing the agency of suing Giordano “without a factual or legal basis.” The judges said that the government’s pursuit of Giordano was “unjust” — so unjust that the judges suggested the obvious. The agency, in its “zeal to locate and penalize Danfelt … pressured her (Giordano) to pay Danfelt’s civil penalty.”
When PA Independent contacted DEP for comment, its press aide, Amanda Witman, said that the agency cannot speak about ongoing cases.
“DEP is currently reviewing the decision and an appeal may be taken to Commonwealth Court,” Witman wrote in an e-mail.