Limits on Administrative Orders to Clean Up in Delaware
On Feb. 21, 2019, the Delaware Superior Court decided that the state’s Department of Natural Resources and Environmental Control (DNREC) cannot order an environmental violator to remedy its violation under the department’s general enforcement statute. That is, under that statute, DNREC can order a person illegally disposing of solid waste to stop adding to the waste pile, but it may not be able to order that person to remove what is already there.
Delaware Dept. of Nat. Res. & Envt’l Control v. McGinnis Auto & Mobile Home Salvage, LLC involved an automobile scrap yard operating in violation of Chapter 60 of Title 7 of the Delaware Code, the general obligation to have a permit for, among other things, solid waste disposal, and the need to operate in compliance with that permit. DNREC issued an order under Section 6018 requiring McGinnis not only to cease receiving any further automobiles or mobile homes to dismantle, but also to take affirmative steps to remove cars and parts already on the property and to dispose of them properly.
Section 6018 of Title 7 provides:
The Secretary shall have the power to issue an order to any person violating any rule, regulation or order or permit condition or provision of this chapter to cease and desist from such violation; provided, that any cease and desist order issued pursuant to this section shall expire (1) after 30 days of its issuance, or (2) upon withdrawal of said order by the Secretary, or (3) when the order is suspended by an injunction, whichever occurs first.
First the Environmental Appeals Board, then the Superior Court, agreed with McGinnis that DNREC overreached. Section 6018 only authorizes administrative orders to “cease and desist,” and those orders expire after 30 days. A mandatory injunction, or even a permanent prohibitory injunction, reasoned the court, exceeds DNREC’s authority under Section 6018 and requires a lawsuit in the Chancery Court.
The McGinnis court does note that DNREC has authority to require corrective action for hazardous waste releases causing imminent and substantial hazard. 7 Del. Code §§ 6308, 6309. We know from this decision that DNREC may not require affirmative steps to remove illegally disposed solid waste. Whether DNREC could require affirmative steps to address water or air pollution (such as notifying downstream users or downwind residents, cleaning up beds and banks, etc.) remains to be seen.
Further, what counts as “ceasing and desisting” and what counts as corrective action is not always apparent. If the presence of the automobile waste violates, for example, the permit requirement of Section 6003, how can one “cease and desist” from that violation without either removing the waste or obtaining a permit?