STATE OF DELAWARE, DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL, Appellant,
MCGINNIS AUTO & MOBILE HOME SALVAGE, LLC, Appellee.
Submitted: February 8, 2019
K. Durstein, III, Deputy Attorney General, Department of
Justice, Dover, Delaware, Attorney for the Appellant.
W. Paradee, Esquire, Daniel F. McAllister, Esquire, &
Stephen A. Spence, Esquire, Baird, Mandalas, Brockstedt, LLC,
Dover, Delaware, Attorneys for the Appellee.
Department of Natural Resources and Environmental Control
(hereinafter "DNREC") appeals an Environmental
Appeals Board (hereinafter "the Board" or "the
EAB") decision in favor of McGinnis Auto & Mobile
Home Salvage, LLC (hereinafter "McGinnis"). DNREC
had cited McGinnis for a series of alleged environmental
violations. It then issued an order on August 2, 2016,
pursuant to its cease and desist authority found in 7
Del. C. § 6018 (hereinafter "Section
6018"). The cease and desist order contained both
prohibitive and affirmative orders. In addition to requiring
McGinnis to cease all alleged violations, it directed
McGinnis to remediate its site within thirty days and account
for solid waste at its facility. McGinnis challenged the
legality of the order and appealed it to the EAB. In its EAB
appeal, McGinnis argued that the Secretary exceeded his cease
and desist authority by ordering McGinnis to take affirmative
corrective action. DNREC countered that it has authority to
issue mandatory injunctions based upon its statutory
authority to issue cease and desist orders.
agreed with McGinnis and found that the Secretary's cease
and desist power permits him to prohibit conduct but not to
mandate corrective action. This case presents an issue of
first impression regarding the scope of this agency's
"cease and desist" power. For the reasons that
follow, the provision in DNREC's enabling statute
authorizing its Secretary to issue cease and desist orders
does not authorize it to mandate that a party pursue
affirmative corrective action. Accordingly, the EAB's
decision in this matter is AFFIRMED.
owns and operates a business in Kent County, Delaware, that
among other things, dismantles and salvages dilapidated
mobile homes. On February 25, 2015, staff from DNREC
conducted a site inspection of its premises. After the
inspection, DNREC cited it for improperly storing solid waste
and operating a materials recovery facility without a permit.
In DNREC's notice of violation, it demanded that McGinnis
submit a detailed plan to remove the waste. DNREC also
imposed a ninety-day deadline for McGinnis to submit an
application for a resource recovery permit. McGinnis
submitted a timely solid waste disposal plan to remove the
solid waste by July 2016, but did not apply for a permit.
inspected the site again on March 30, 2016, and documented
the same violations as the year before. It gave McGinnis a
new deadline in July 2016, to remove the waste pile.
Thereafter, McGinnis allegedly did not comply. The DNREC
Secretary then issued Secretary's Order No. 2016-WH-0031
on August 2, 2016. The order provided:
HEREBY ORDERED, based on the foregoing findings and pursuant
to the authority vested in the Secretary by 7 Del.
C. §6018 that Respondent shall:
1) Upon receipt of this Order, immediately cease and desist
receiving and dismantling mobile homes and construction and
2) Within 30 days of receipt of this Order, remove all solid
wastes including, but not limited to, discarded mobile homes
and piles of construction and demolition waste on land and in
containers. However, in accordance with the approval issued
by Kent County in 1995, Respondent may store no more than two
3) Complete the above-referenced requirements in compliance
with all applicable laws and regulations, and only utilize
transportation companies, disposal facilities, and
contractors holding valid permits.
4) Within 30 days of receipt of this Order, provide written
documentation to the Department confirming the proper
disposal or recycling of the solid wastes. Documentation
shall include, but not be limited to, identification of the
hauler used to transport the solid wastes as well as weigh
tickets or other valid documentation representing authorized
disposal or recycling.
5) Within 30 days of receipt of this Order, provide to the
Department a list of all mobile homes received by McGinnis
since 2001, including, but not limited to, the date each
mobile home was received by McGinnis, the vehicle
identification number for each mobile home, and date of
manufacture of each mobile home. Respondent shall also
identify those mobile homes currently at the facility.
6) Within 30 days of receipt of this Order, provide a
detailed explanation of McGinnis' inspection, handling,
storage, disposal, and recycling procedures for all materials
removed from, or contained within, mobile homes.
7) Should Respondent desire to continue receiving,
dismantling and recycling mobile homes or other construction
and demolition debris, Respondent shall provide to the
Department a completed Resource Recovery Facility Permit
Application within 30 days of receipt of this Order.
Respondent shall not accept mobile homes or construction and
demolition waste prior to such a permit being issued by the
appealed this order to the EAB. The parties, by stipulation,
agreed that certain facts would be assumed only for purposes
of resolving the scope of DNREC's authority under Section
6018. In the EAB appeal, McGinnis argued that the order
exceeded the Secretary's cease and desist power because
the mandates found in paragraphs (2) through (6) were
equivalent to mandatory injunctions. DNREC countered that it
had authority to issue all seven mandates pursuant to its
broad statutory and regulatory powers.
found paragraphs (1) and (7) to fall within the
Secretary's cease and desist power. The EAB found,
however, that the Secretary "did not have adequate legal
authority to impose paragraphs (2) through (6) of the
order." The Board reasoned that DNREC's cease and
desist power was "not the proper enforcement mechanism
to mandate affirmative injunctive relief" and that
"other, more appropriate, enforcement mechanisms"
should have been used.
then appealed the EAB's decision to this Court, arguing
that paragraphs (2) through (6) were lawful orders. Since
McGinnis did not appeal the Secretary's authority to
issue paragraphs (1) and (7) of the order, only paragraphs
(2) through (6) are at issue in this appeal.
Arguments of the Parties
parties briefed this matter well but cited little case
authority because little is available. Both concede that
there is no Delaware authority addressing the scope of an
agency's cease and desist authority. Furthermore, DNREC
identified no persuasive authority in federal administrative
law or in the administrative law of other states that support
expanding its cease and desist authority to the extent it
advocates. In briefing, the parties focused on DNREC's
enabling statute, the Delaware Supreme Court's decision
in Formosa Plastics Corp. v. Wilson.,  and authority
discussing the nature and availability of injunctions in the
Court of Chancery and federal courts.
balance, DNREC likens its Secretary's authority to that
of the Court of Chancery. Namely, it argues that in the same
way the Court of Chancery exercises its authority to mandate
compliance with the law through injunctive relief, it too has
broad authority to administratively order compliance and to
monitor remediation. It argues that the Secretary's order
properly chose an approach designed to bring McGinnis into
compliance within 30 days without resorting to litigation. It
also argues that the General Assembly intended this cease and
desist authority to be an administrative alternative to
seeking a mandatory injunction in the Court of Chancery.
further alleges that the EAB's order "would
eviscerate efforts by DNREC to deal administratively with
serious statutory and regulatory violations presenting
imminent risk to the environment and to public health."
DNREC relies heavily upon a provision in Chapter 60 of Title
7 (hereinafter "Chapter 60") that provides that its
powers should be construed liberally in order to preserve the
land, air and water resources of Delaware. It argues that
the Secretary's cease and desist orders are not limited
in scope, but only in duration. Accordingly, DNREC argues