DNREC overreached with order to Kent business, court says

DOVER — The Delaware Department of Natural Resources and Environmental Control overreached when first ordering a Kent County business to remove solid waste from the property in 2015, according to a court opinion released Thursday.

While DNREC had authority to issue a cease and desist order to Clayton-based McGinnis Auto and Mobile Home Salvage, it could not mandate corrective action, Superior Court Judge Jeffrey J. Clark said in a 13-page ruling.

Thus, the case was returned to the Environmental Appeals Board for further review. The EAB had ruled in favor of the business that dismantles and salvages dilapidated mobile homes.

DNREC initially cited violations following a Feb. 25, 2015, inspection for “improperly storing solid waste and operating a materials facility without a permit. Another site inspection on March 30, 2016 documented the same violations, according to the opinion.

A July 2016 deadline to remove the waste pile within 30 days was issued and “McGinnis allegedly did not comply,” according to background cited in the opinion. DNREC later argued that it had broad statutory and regulatory powers to make lawful orders.

Delaware Code does not define “cease and desist,” the judge reasoned, and no statute language indicates that DNREC can “compel affirmative corrective action.” The agency can seek an injunction or temporary restraining order through the Court of Chancery is violations continue.

Both sides respond

Deputy Attorney General Ralph E. Durstein III argued for DNREC. On Friday, spokesman Michael Globetti said, “DNREC is reviewing the Superior Court decision after having received it Thursday afternoon.”

Attorneys John W. Paradee, Daniel F. McAllister and Stephen A. Spence represented McGinnis. Mr. Paradee released a statement Friday that read:

“My client, McGinnis Auto, is pleased that both the Environmental Appeals Board and now the Superior Court have recognized that DNREC’s view of its Secretary’s power is far too broad. Yesterday’s ruling is a major victory for Delaware private property owners against the specter of administrative overreach.

“The decision prevents an appointed government official like the DNREC Secretary from issuing orders to the citizens of Delaware which are more properly the prerogative of the courts, where citizens have a right to be heard and assurances of due process.”

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