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Garvin v. Booth

Superior Court of Delaware

July 10, 2019


          Submitted: June 28, 2019

          In and for Sussex County

          Robert F. Phillips, Deputy Attorney General, Department of Justice, New Castle, Delaware, Attorney for the Plaintiff.

          Christopher M. Coggins, Esquire, Coggins Law, LLC, Wilmington, Delaware, Attorney for the Defendants.



         Plaintiff is the Secretary of the Department of Natural Resources and Environmental Control ("DNREC"). He moves for summary judgment against Defendants Joseph and Margaret Booth (collectively the "Booths"). This suit implicates the relationship between Delaware's environmental administrative process and DNREC s authority to sue allegedly responsible parties in the Superior Court. In this case, DNREC s Secretary (the "Secretary") issued an order (the "Order") finding the Booths liable for the release of hazardous substances at their Georgetown dry cleaning site (the "Site"). The Booths timely appealed the Order to the Environmental Appeals Board (the "EAB"). The Booths, however, abruptly withdrew their appeal immediately before the scheduled hearing.

         DNREC now sues (1) for damages available under Delaware's Hazardous Substances Cleanup Act ("HSCA"), [1] and (2) for all expenses, including cleanup costs, recoverable pursuant to 7 Del. C. § 6005(c). Here, the Booths did not contest the Secretary's Order finding them liable for releases at the Site. As a result, the statutory appeal provisions in DNREC's enabling statute and the doctrine of issue preclusion make the Secretary's findings and conclusions binding in this Superior Court action. Partial summary judgment as to the Booth's liability is therefore granted. The amount of damages due DNREC, however, remains a factual issue. For that reason, DNREC s motion for summary judgment is also denied, in part.

         Furthermore, this decision separately resolves a pending discovery dispute between the parties. Here, the parties disputed what was discoverable to such a large degree that the Court granted DNREC's motion for a protective order staying further discovery until it issued this decision. Because DNREC s motion is denied, in part, the stay is lifted. The breadth of discovery sought by the Booths, however, was too broad because (1) the Booths' liability for releases at the Site has been fixed, and (2) DNREC now concedes that it does not seek statutory civil penalties. Accordingly, the parties may pursue discovery relevant to the amount of HSCA provided damages resulting from the Booths' refusal to comply with the Secretary's Order. The Court's existing protective order is therefore modified to accommodate the proper scope of this lawsuit.


         The facts relied upon by the Court are those of record, viewed in the light most favorable to the Booths. Mr. Booth worked for Thoro-Kleen, Inc., who operated a dry cleaning business at the Site prior to September 2, 1986. Prior to then, Mr. Booth's father owned the Site. After the Booths acquired title to the Site in September 1986, and assumed control of Thoro-Kleen, [2] they continued to operate the dry cleaning business until late 2010. They retained ownership of the land after Thoro-Kleen ceased operation.

         In 2014, DNREC sent the Booths a notice of liability alleging there were perchloroethylene ("PCE"), trichloroethylene ("TCE"), dichloroethylene (DCE), and vinyl chloride releases at the Site. HSCA defines PCE and TCE as hazardous substances. After DNREC issued this notice of liability, DNREC and the Booths corresponded regularly over the next several years regarding the Booths' potential participation in DNREC s Voluntary Cleanup Program. When negotiations failed, the Secretary issued an October 31, 2017, Order pursuant to 7 Del. C. § 9109. In it, he made certain findings of fact, and required the Booths to initiate corrective actions.

          Relevant portions of the Order include the following:

Mr. and Mrs. Joseph Booth are not innocent landowners pursuant to § 9lO5(c)(2)b. because prior to their purchase of the property where Thoro-Kleen is located they knew of the potential presence of PCE and TCE at the Site yet failed to conduct an appropriate inquiry . . . [O]nce they became owners and operators of the property and the business they became liable for any and all releases of hazardous substances at or from the Site.
Based on the foregoing, . . . Respondents are potentially responsible parties and . . . they have violated HSCA and the Regulations.

         The Order then directed the Booths to: (1) identify a consultant to perform a remedial investigation of the facility within sixty days; (2) submit a draft work plan within forty-five days thereafter; (3) submit a completed remedial investigation and feasibility study within one year from the date of the Order; (4) pay outstanding response costs incurred to date by DNREC and agree to pay any reasonably incurred response costs incurred in the future; (4) implement a final plan of remedial action upon issuance; and (5) notify DNREC within seven days regarding circumstances preventing them from meeting the Order's deadlines. The Booths complied with none of the deadlines.

         They did, however, timely appeal the Order to the EAB. Throughout their pre-Order correspondence with DNREC, they claimed they were innocent landowners.[3] At the Booths' request, the EAB scheduled a hearing on November 27, 2018, to address the Booths' alleged liability and their defenses. The Booths appeared at the hearing, but then abruptly withdrew their request for a hearing with little explanation. The Booths believed that DNREC and the EAB were so structurally intertwined that the EAB could not fairly adjudicate the matter.

         Prior to the hearing date, DNREC had filed a Superior Court suit seeking remedial costs and civil penalties from the Booths. Specifically, the suit sought damages provided for in two separate chapters in Title 7. First, DNREC sought damages pursuant to HSCA (Chapter 91). HSCA provides that the Secretary may sue any potentially responsible party in Superior Court for (1) remedial costs incurred by the Secretary, or (2) for a party's refusal to comply, without sufficient cause, with an order issued pursuant to subsections (a) or (b) of Section 9109 of HSCA.[4] DNREC also sought civil penalties under this HSCA provision of up to $10, 000 per day for the Booths' refusal to comply with the Secretary's Order. Second, DNREC sought damages pursuant to Section 6005 of Title 7 for abatement of the violations, cleanup costs, and other expenses.[5]

         DNREC then moved for summary judgment while simultaneously seeking to stay discovery pending the Court's summary judgment decision. Prior to the oral argument on those two motions, the Booths pressed extremely broad discovery. The discovery seemed in large part targeted at the Booths' underlying liability, notwithstanding their decision not to prosecute an appeal of the Secretary's Order. As a result, DNREC moved for a protective order. The Court granted a protective order staying discovery pending its decision on this motion. When doing so, the Court recognized that the parties' positions regarding the scope of what claims and defenses were relevant to this case were irreconcilable short of a Court decision.


         Summary judgment is appropriate only if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.[6] The Court must view the evidence in the light most favorable to the non-moving party.[7] The burden of proof is initially on the moving party.[8] However, if the movant meets his or her initial burden, then the burden shifts to the non-moving party to demonstrate the existence of material issues of fact.[9] The non-movant's evidence of material facts in dispute must be sufficient to withstand a motion for judgment as a matter of law and sufficient to support the verdict of a reasonable fact finder.[10]


         DNREC argues that its motion for summary judgment should be granted because the Booths withdrew their EAB appeal. DNREC's structured its motion to seek full summary judgment. In the alternative to full summary judgment, DNREC seeks partial summary judgment as to liability because the Booths failed to exhaust their administrative remedies.

         The Booths oppose the motion. They allege that DNREC s motion should not be granted because DNREC s complaint does not properly plead the elements of a claim under 7 Del. C. § 9109(e). They also argue that DNREC cannot recover remedial costs under 7 Del. C. § 6005(c) because the Secretary did not first submit a detailed billing to them itemizing the costs he alleges they owe.

         At the outset, there is no dispute on the record that the Secretary found the Booths liable for HSCA violations. When doing so, the Secretary made factual findings and did so with reasonable particularity. The General Assembly created a full and adequate process enabling the Booths to challenge the Order before the EAB. They should have adjudicated the substantive issues in that forum; they have now forfeited their ability to challenge many of those findings.

         The EAB is a "quasi-judicial review board which is constituted in order to hear appeals of decisions of the Secretary."[11] Chapter 60 of Title 7 establishes the process for appealing such decisions.[12] This process provided the Booths the opportunity for an evidentiary hearing, conducted in accordance with Delaware's Administrative Procedure Act (the "APA").[13] Tellingly, Superior Court review of decisions such as the one at hand is available only when a person is "aggrieved by any decision of the Board."[14]

         Chapter 60 of Title 7 does not expressly provide that aggrieved parties, such as the Booths, must exclusively pursue this administrative process when challenging a Secretary's order. Nevertheless, the General Assembly demonstrated its intent that this process be a respondent's sole recourse by creating such a pervasive administrative process. The comprehensive nature of this overall process, coupled with ...

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