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FMC Corp. v. New Castle County Special Services Department

Superior Court of Delaware

February 27, 2018


          Submitted: November 30, 2017

         Upon Review of Petitioner FMC Corporation's Writ of Certiorari: Granted in part.

          Jessica C. Watt, Esquire, and Brendan K. Collins, Esquire (admitted pro hoc vice), of BALLARD SPAHR, LLP, Wilmington, Delaware, Attorneys for Petitioner.

          Max B. Walton, Esquire, and Kyle E. Gay, Esquire, of CONNOLLY GALLAGHER, LLP, Wilmington, Delaware, and Marlaine A. White, Esquire, of NEW CASTLE COUNTY OFFICE OF LAW, New Castle, Delaware, Attorneys for Respondents.


          LEGROW, JUDGE.

         This case considers the scope of the Special Services Department's General Manager's authority, specifically whether the General Manager has the authority to impose monetary penalties and award injunctive relief after finding a sewer user in violation of their permit or the County Code. Chapter 38 of the County Code grants the General Manager enforcement powers, including the power to suspend sewer services and revoke discharge permits. When the General Manager has cause to believe an industrial user is violating the County Code, the General Manager may hold a "show cause" hearing at which the putative violator may show cause why services should not be suspended.

         In this case, however, the General Manager adjudicated the merits of Petitioner's alleged violations under the code and issued a final order requiring Petitioner to pay $7, 000 in fines and $139, 208 in actual costs, to pay future costs as assessed, and to submit a preventative plan for which Petitioner would bear the cost of implementation. I find the General Manager has no authority under the County Code to impose penalties and injunctive relief. My reasoning follows.

         Factual and Procedural Background

         The Special Services Department (the "Department") is a county agency that manages the New Castle County sewer system. FMC ("Petitioner") operates a food and nutrition manufacturing plant in Newark, Delaware. As part of its operations, Petitioner discharges microcrystalline cellulose, a food additive, into the sewer system under to a county-issued discharge permit. The permit requires Petitioner to comply with all provisions of Chapter 38 (the "Chapter") of the County Code.

         On January 22, 2016, the Department issued a notice of violation ("NOV") informing Petitioner that its discharge was obstructing the sewer system in violation of Petitioner's discharge permit. The Department issued several more NOVs to Petitioner regarding the obstruction. On April 21, 2016, the Department held a "show cause" hearing (the "hearing") requiring Petitioner to show cause why its discharge permit should not be revoked. During the hearing, Department representatives and Petitioner presented evidence regarding the obstruction to the Department's General Manager, who presided over the hearing. At the conclusion of the hearing, the General Manager requested supplemental evidence and briefing.

         After receiving the parties' supplemental briefs, the General Manager issued a final order (the "Final Order") directing Petitioner to pay fines and actual and future costs, and to submit a plan designed to prevent future obstructions. Petitioner appealed the Final Order on October 27, 2016. On May 31, 2017, this Court held Petitioner had no statutory right to appeal, but granted Petitioner leave to file a petition for writ of certiorari. This Court granted certiorari and the parties briefed and argued the issue.

         The Parties' Contentions

         Petitioner argues the General Manager's Final Order is invalid for four reasons. First, Petitioner contends the Department exceeded its jurisdiction because (i) the enabling statute does not authorize the County to "hear and decide" matters of law, and (ii) the General Manager lacks authority to impose injunctive relief or monetary penalties. Second, Petitioner maintains that the hearing violated due process because the General Manager both investigated and adjudicated the proceedings. Third, Petitioner asserts the General Manager committed errors of law at the hearing by applying the wrong burden of proof, failing to consider evidence, and imposing penalties through the Final Order. Finally, Petitioner argues the General Manager proceeded irregularly by failing to provide an adequate record for judicial review.

         In response, the Department and General Manager first argue the County has authority under the home rule doctrine to grant adjudicative powers to the Department, and the General Manager did not exceed the authority granted under the County Code. Second, Respondents contend due process is satisfied because the General Manager had no investigative role in Petitioner's case. Third, Respondents assert the General Manager applied the proper burden of proof under the County Code and considered all the evidence presented. Finally, Respondents argue the General Manager preserved a proper record for judicial review as required by the County Code.


         "Petitioners for a writ of certiorari must satisfy two threshold conditions: the judgment must be final and there can be no other available basis for review."[1] The reviewing court will consider "whether the tribunal below (1) committed errors of law, (2) exceeded its jurisdiction, or (3) proceeded irregularly."[2] "A decision will be reversed for an error of law committed by the lower tribunal when the record affirmatively shows that the lower tribunal has proceeded illegally or manifestly contrary to law."[3]

         A. The enabling statute and the home rule doctrine allow the County to establish a process under which the General Manager may hold hearings and issue administrative orders.

         Petitioner first argues the General Manager exceeded his powers under the enabling statute by holding the hearing and issuing the Final Order. Petitioner avers the Department's enabling statute contains no grant of authority to hear and decide matters of law. This, Petitioner argues, is in contrast to other county departments' enabling statutes, which expressly grant authority to hold hearings and render decisions.[4]

         Petitioner is correct that the Department's enabling statute, 9 Del. C. § 1341, contains no provision expressly granting the General Manager authority to hear matters or issue written decisions. The analysis, however, cannot end there. 9 Del. C. § 1521(a) accords the County general jurisdiction "over all matters pertaining to the County, . . . including the power to act upon all matters pertaining to sewers, sewerage disposal plants, . . . and sewer systems generally."[5] More broadly, the County's home rule authority under 9 Del. C. § 1101 grants the County "all powers which . . . would be competent for the General Assembly to grant by specific enumeration, and which are not denied by statute . . . ."[6] Those powers include adjudicatory powers that the General Assembly at times specifically grants to agencies.

         Additionally, under the home rule doctrine, counties and municipalities "exercise the power of the sovereign except as limited by either the State Constitution or State Statute."[7] The Court of Chancery reviewed the home rule doctrine in Salem Church v. New Castle Cty.[8] In Salem Church, a developer challenged the County Planning Board's authority to hear appeals from the County's Department of Land Use.[9] The developer argued nothing in the Delaware Code granted the Planning Board authority to hear administrative appeals under its enabling statute.[10]

         The Court of Chancery held the Planning Board had authority to hear appeals from the Department of Land Use under the home rule doctrine, [11] reasoning Section 1101 granted the County broad authority to enact procedures the General Assembly could have granted.[12] The Court concluded the County granted the Planning Board jurisdiction to hear appeals properly because nothing in the Delaware Code or Constitution prohibited the procedure.[13]

         Here, as in Salem Church, the County has broad authority to enact provisions that are not contrary to the Delaware Constitution or State statute, including the power to hear and decide. As discussed below, the County Code grants the General Manager authority to hear and decide matters related to NOVs. Nothing in the constitution, Section 1341, or any other statute Petitioner identified prohibits granting this adjudicatory power to the Department. Accordingly, the General Manager did not exceed the authority under the enabling statute by holding the hearing.

         B. The General Manager exceeded its authority under the County Code by imposing penalties and granting the Department injunctive relief.

         In the Final Order, the General Manager directed Petitioner to: (1) pay $7, 000 in fines pursuant to the NOVs; (2) reimburse $139, 208 to the Department for actual costs incurred to monitor, repair, and clean blockages allegedly caused by Petitioner; (3) provide the Department with a plan to prevent further obstruction of the sewer system, at sole cost to Petitioner; and (4) pay future costs associated with monitoring, repairing, and cleaning blockages caused by Petitioner until the plan is approved. Petitioners argue the General Manager exceeded his authority under the County Code by granting the Department injunctive relief and monetary penalties.

         In Delaware, "a statute or an ordinance is to be interpreted according to its plain and ordinary meaning."[14] Under settled rules of construction, courts are obliged to "read the [s]tatute as a whole and to harmonize the parts thereof."[15]"Words in a statute or an ordinance should not be construed as surplusage if there is a reasonable construction which will give them meaning, and the courts must ascribe a purpose to the use of statutory language, if reasonably possible."[16]

         Resolution of Petitioner's challenge to the General Manager's authority to award monetary and injunctive relief turns on the proper interpretation of Article 3 of the Chapter, which contains four sections: (i) Prohibitions;[17] (ii) Enforcement;[18](iii) Penalties;[19] and (iv) Means of Appeal.[20] This case concerns the Enforcement and Penalties sections. In the Enforcement Section, [21] the General Manager is granted specified enforcement authority[22] and "General Manager" is the active pronoun in the enforcement provisions concerning Right of Entry, [23] Notice of Violation, [24] Show cause hearing, [25] Administrative order, [26] Suspension, [27] and Notification of proposed termination of service.[28]

         In contrast, the Penalties Section describes: (1) penalties and fines that may be imposed on violators of the Chapter;[29] (2) remedies and relief available to the General Manager in pursuing a claim against violators;[30] and (3) requirements for a valid consent order.[31] The penalties and fines provisions are contained in Subsections A and B. In contrast to the active voice used in the Enforcement Section, Subsections A and B were written in the passive voice, describing what fines may be imposed on the violator, without providing who may impose the fines. Subsection A also specifies that a willful violation of the Chapter constitutes a criminal misdemeanor.[32] Moreover, the remedies and relief specified in Subsections C and D are written in the passive voice and identify the relief, including injunctive relief and monetary damages, the General Manager may obtain through a civil action. In contrast, Subsection E employs the active voice and refers to performance bonds the General Manager may require a user to post.

         Respondents argue Subsections A and B should be read to give the General Manager unilateral authority to impose fines and penalties. This reading, however, is untenable for three reasons. First, where the Chapter's drafters intended to give the General Manager a particular power, they did so by specifying that power using the active voice. In contrast, the Penalties and Fines Subsections do not mention the General Manager, except to state that he "may recover" attorneys' fees, costs, and expenses and may collect them through any available remedy. This difference in the language presumably was intentional and logically and coherently may be read as limiting the General Manager to seeking those monetary assessments through a civil action.

         Second, Respondents' interpretation would render Subsection D of the Penalties Section surplusage because there would be no need to pursue a civil action in Court if the General Manager unilaterally could impose penalties. Third, it is plain, as Respondents concede, that the General Manager may not adjudge a user guilty of a criminal charge or sentence a user accordingly. Yet Respondents' interpretation of the County Code as allowing the General Manager to adjudicate and ...

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