Judge rejects Booth motion for reargument | Cape Gazette

2022-06-16 20:49:27 By :

A Delaware Superior Court judge has rejected a motion by former state Sen. Joe Booth and his wife to reargue a ruling mandating them to pay $105,000 in remedial costs for cleaning up a former dry-cleaning site they owned in Georgetown.

In a March 24 opinion, Judge Jeffrey Clark said Booth and his wife Margaret repeated arguments that the court had previously rejected.

The Booths’ motion was to reargue and correct the record of a Jan. 27 ruling by Clark that stated that the Department of Natural Resources and Environmental Control could collect reimbursement of money it had paid to an environmental consultant for investigating and planning the cleanup of the former Thoro-Kleen dry-cleaners site on Railroad Avenue in Georgetown. While DNREC had been seeking to collect those funds, the Booths had filed a cross-motion arguing that DNREC was not permitted to collect those costs under the state’s Hazardous Substances Cleanup Act.

Since then, the U.S. Environmental Protection Agency announced it was proposing to add the Thoro-Kleen site and another former dry-cleaner site in Georgetown to its Superfund list.

The Booths’ attorney, Chris Coggins, said his clients are planning to appeal to the Delaware Supreme Court.

“ The court has twice granted summary judgment despite DNREC not proving all elements required by HSCA.  So, the denial of reargument simply continues the court’s disregard for HSCA’s plain terms and the factual record. And the court’s refusal to correct errors confirms such disregard since the Booths only sought to correct those that were clear from the record, including incorrect dates, the inclusion of events that never occurred and statements never made, and stating that documents said things that they didn’t,” he said.

The Booths’ case dates back to October 2018, when DNREC Secretary Shawn Garvin sued the couple for not complying with an order dated Oct. 31, 2017, mandating that they conduct a cleanup of the site, which they 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 EPA, 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 agency also says Georgetown’s public drinking water meets state and federal regulations.

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 EPA safety levels. 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 EPA 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 owed. 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 DNREC was within its rights to seek remedial costs for the cleanup. 

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