Court upholds decision against Joe Booth

Judge says appeal of cleanup order not filed in timely manner
March 6, 2019

A Delaware Superior Court judge has upheld a ruling against former state Sen. Joe Booth over cleanup of a former dry-cleaning facility Booth owns in Georgetown.

Judge Jeffrey Clark affirmed a ruling by the state Environmental Appeals Board that Booth did not file an appeal of an order from Delaware Department of Natural Resources and Environmental Control to clean up the Thoro-Kleen dry cleaners property at 11 Railroad Ave. in Georgetown in a timely fashion. A lawsuit filed against Booth and his wife, Margaret, by DNREC seeking to set up financial penalties for the cleanup is still in litigation.

The issue between DNREC and the Booths has been ongoing for years over the cleanup of 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. PCE 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 have claimed they were innocent landowners who were not aware of the presence of PCE at the time they bought the property. DNREC Secretary Shawn Garvin disagreed, saying in an Oct. 31, 2017 order that the Booths were aware of hazardous materials on site as early as 1985.

The roots of the case date to 1986, when the Booths purchased the Thoro-Kleen property from Joe’s parents. Thoro-Kleen operated as a dry-cleaner until 2010, when it closed down, but the Booths still owned the land.

In 2010, DNREC says 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 for 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 levels.

The Booths submitted a voluntary cleanup application with DNREC in March 2015, but a year later, DNREC said an investigation again revealed the presence of PCE and TCE in the site’s groundwater. The two sides negotiated remedial action, but nothing was agreed upon.

According to the Booths, Garvin told them May 17, 2017 that he stood by DNREC’s assessment that the Booths were liable for cleanup. Garvin’s comment was made orally and was put in a written letter by DNREC program administrator Timothy Ratsep on May 23. The Booths appealed to the appeals board on June 12. DNREC argued that the appeal should be dismissed because neither Garvin’s oral statement nor the May 23 letter constituted action triggering an appeal. DNREC also argued that the Booths did not file their appeal within 20 days of Garvin’s statement.

A hearing was scheduled for November 2017, but was rescheduled for April 10, where the Booths’ appeal was denied.

Prior to that hearing, Garvin put out a second order asking the Booths to come up with a consultant to investigate the property, submit a draft work plan, conduct a feasibility study, pay response costs and implement an action plan. The order also provided a stay of enforcement until July 26, which DNREC says the Booths were notified of.

On Oct. 11, DNREC filed a lawsuit against the Booths for not complying with Garvin’s order. The Booths filed to dismiss the suit, saying that DNREC has failed to state a claim and Garvin’s order never went into effect. Their attorney, Chris Coggins, said DNREC is harassing the Booths and trying to increase the cost of litigation. In legal filings, Coggins said the demands of the order are being completed by contractor Ten Bears Environmental.

On Nov. 27, the appeals board convened to hear a second appeal brought by the Booths related to Garvin’s second order detailing how they should conduct cleanup of the property. However, at the hearing, the Booths withdrew their appeal.

Oral argument on the lawsuit was held Dec. 14, where, according to Clark’s decision, the Booths argued that they withdrew their second appeal because the appeals board and DNREC were intertwined, and that they would never get a fair hearing from the board. DNREC argued that the Booths withdrew the only appeal that could have provided the relief they were requesting.

In his decision, Clark said Ratsep’s letter could not be considered a secretary’s action, but was instead urging the Booths to accept a settlement and explaining DNREC’s litigation policy.

Still, Clark’s decision only addresses the procedural aspect of the Booths’ case, not their liability or the merit of their defense.

Booth’s attorney, Chris Coggins, did not respond for comment.

DNREC spokesman Michael Globetti said the matter was still in litigation so the department had no further comment at this time.