A multi-year legal battle between Delaware Department of Natural Resources and Environmental Control and former state Sen. Joe Booth ended in DNREC’s favor when a Delaware Superior Court judge awarded the department $105,000.
Judge Jeffrey Clark said in a Jan. 27 decision that DNREC could collect reimbursement of money the department paid to an environmental consultant for investigation and planning the cleanup of the former Thoro-Kleen dry cleaners site in Georgetown. While DNREC had been seeking to collect those funds, Joe Booth and his wife Margaret had filed a cross-motion arguing that DNREC was not permitted to collect those costs under the state’s Hazardous Substances Cleanup Act.
The case dates back to October 2018, when DNREC Secretary Shawn Garvin sued the Booths for not complying with an order dated Oct. 31, 2017, mandating that they conduct a cleanup of their property at 11 Railroad Ave. in Georgetown. The site had been home to the Thoro-Kleen plant, which the Booths had purchased from Joe’s parents in 1986. The ground surrounding the plant was found to contain hazardous material, namely the chemical perchloroethylene, or PCE, a colorless liquid used in dry cleaning.
According to the Environmental Protection Agency, PCE was used in dry-cleaning and metal-degreasing operations. It is a nonflammable liquid that looks like water, but is much denser and can contaminate groundwater. The EPA says exposure to PCE can result in neurological problems, liver damage and increased risk of cancer.
The Booths argued that they were innocent landowners who were not aware of the presence of PCE at the time they bought the property. In his 2017 order, Garvin disagreed, saying the Booths were aware of the presence of PCE as early as 1985. The Thoro-Kleen site ceased operations in 2010, and the building has been removed.
In 2010, DNREC said it investigated the site and found PCE and another chemical, trichloroethylene, or TCE, also used in dry cleaning, in the groundwater. In early 2014, DNREC said it sent a notice to the Booths about their liability for the site. Later that year, DNREC determined the PCE and TCE levels in the groundwater at the site exceeded Environmental Protection Agency safety levels.
Discussions between DNREC and the Booths did not resolve the situation. The Booths worked with a brownfield developer, Ten Bears Environmental, on cleanup of the site to be used as a parking lot for the neighboring Restoration Worship Center. A brownfield site is a parcel that has been found by the federal Environmental Protection Agency to contain environmental contamination. Delaware’s brownfield program provides entities that want to redevelop a brownfield site with financial assistance in the form of reimbursements, tax credits or grants.
In a 2019 decision, Clark agreed with DNREC that the Booths were liable for the site cleanup. The last remaining bit of business to be resolved was how much the Booths owe. DNREC, in court filings, originally asked for $303,000, but that amount was revised down to $105,000 based on invoices for work already performed by Ten Bears.
In his Jan. 27 decision, Clark rejected the Booths’ cross-motions for summary judgment, saying that DNREC was within its rights to seek remedial costs for the cleanup.
“In summary, the Booths are responsible parties as a matter of law because they violated a final order. They did so by failing to remediate the site voluntarily or enter into an agreement to limit their liability. As a result, DNREC used a statutorily available tool to address the releases through its Brownfield development agreement with Restoration Worship,” Clark said. “Although the Booths do not concede an amount certain that is due, they identify no evidence of record that supports that the expenses were unreasonable, unrelated, inaccurate or unnecessary.”
The Booths’ attorney, Chris Coggins, said, “The Booths are disappointed with the court’s decision. With this decision, Judge Clark has sanctioned DNREC and Secretary Garvin’s harassment of Delaware citizens, disregard for the law, HSCA regulations, and DNREC’s own policies, and using the Brownfield Development Program as essentially a sting operation. For the three years before suing, DNREC consistently told the Booths they would not be responsible or liable for the costs incurred for a Brownfield developer’s cleanup of the property. Then, upon the Brownfield Developer, Restoration Worship Center, initiating remediation of the property under the Brownfield Agreement, Secretary Garvin turned around and sued the Booths to recover the costs incurred by Restoration Worship to clean up the property. Delaware’s citizens should be leery of DNREC’s motives going forward. DNREC’s conduct will also likely chill voluntary reporting of contamination.”
Coggins said the Booths intend to appeal the ruling.
The price of liberty is eternal vigilance.