DNREC battle against former legislator continues

Former state legislator Joe Booth’s case over pollution in Georgetown will go to a jury trial, a Superior Court judge has ruled. 

Booth has for years been battling Delaware Department of Natural Resources and Environmental Control over the former Thoro-Kleen dry-cleaner site in Georgetown. Booth and his wife, Margaret, have owned the property since 1986, when Joe purchased it from his father.

The Booths ceased operating the facility in 2010. When another dry-cleaning operation sought to take over the facility, DNREC investigated and found perchloroethylene, or PCE, a colorless liquid used in dry-cleaning, and another chemical, trichloroethylene, or TCE, also used in dry-cleaning, had polluted the groundwater around the property.

In 2014, DNREC sent notice to the Booths that they were liable for the site. The Booths maintained they were innocent purchasers and were not responsible for contamination of the site, which had operated as a dry-cleaner since the 1950s. The Booths attorney, Chris Coggins, said the Booths were approached by another potential user of the site and the Booths themselves arranged for a brownfield developer to come in and clean up the site. Coggins said DNREC has demanded the Booths enter into a state cleanup program.

On Oct. 31, 2017, DNREC Secretary Shawn Garvin put out an 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.

The Booths appealed that order to the appeals board, but withdrew their case after what came next.

In October 2018, DNREC filed a lawsuit against the Booths for not complying with Garvin’s order. The department is seeking an award of three times its costs plus civil penalties of $1,000 to $10,000 per day from Sept. 28 to the conclusion of the litigation.

DNREC’s lawsuit cites both the Booths and Thoro-Kleen as co-defendants, which raised new issues at an April 12 hearing in Superior Court in Dover.

At that hearing, Deputy Attorney General Robert Phillips asked for a motion of default judgment against Thoro-Kleen, as the entity had not responded to briefs or filed to dismiss the case. Coggins told Judge Jeffrey Clark he represents the Booths, not Thoro-Kleen, which hasn’t existed or operated since 2010.

Clark granted the default judgment against Thoro-Kleen, although no dollar figure was attached. Phillips said his next step is to ask for a motion of summary judgment against the Booths and Thoro-Kleen.

Clark then ruled on a motion by Coggins requesting a jury trial. Coggins said the crux of the case is that DNREC is using a default judgment to harass the Booths. By going to a jury trial, the Booths would be able to take depositions from DNREC officials, including Garvin. Phillips said he would be filing a motion for a stay of discovery, which would stay depositions.