DNREC is suing Joe Booth for failing to clean up a former dry-cleaning property, but it is already part of DNREC's brownfield cleanup program.
An ongoing court battle pits former Sen. Joseph Booth against the Department of Natural Resources and Environmental Control over chemical cleanup costs.
Booth was a Republican representative for the Georgetown area between 2002 and 2009 and then a senator between 2009 and 2013. He had been mayor of Georgetown between 1988 and 1994.
Now, Booth is the Indian River School District supervisor of buildings and grounds. He and his wife, Margaret, have five grown children. They still live in Georgetown.
His parents, William and Iva Booth, bought a Thorogood dry-cleaning business at 10 Railroad Avenue in the 1950s. Not long after, they bought 11 Railroad Avenue and moved it there, renaming it Thoro Kleen. Joe Booth worked for his parents for about a year before buying the property and business in 1986.
While Booth knew toxic chemicals were used, he claims he does not know of any being disposed of improperly while his parents had the business.
Joe and Margaret Booth operated Thoro Kleen through 2010. They had one notice of violation from the Delaware Department of Natural Resources and Environmental Control, in 2001. The violation was for disposal of chemical filters in a municipal dumpster. Compliance with state requirements was achieved in about two weeks.
After the business closed, the building and property sat vacant.
The Booths planned to sell it for retirement, but it quickly became clear that the property was a burden.
In November 2014, while investigating a suspected petroleum release at the property, testing found elevated levels of tetrachloroethylene (PCE or “perc”) and trichloroethylene (known as TCE) at Thoro Kleen. Both toxic chemicals are used in dry cleaning and known to cause cancer.
DNREC notified the Booths in January 2015 that they had “documented the release of or threatened release of hazardous chemicals,” and that the Booths may be liable for the contamination. DNREC encouraged them to enter into a Voluntary Cleanup Plan, which would require them to pay for cleanup.
In March 2015, they submitted a program application and the $5,000 fee. However, they couldn’t come to an agreement with DNREC because Booth refused to admit guilt, which signing the agreement would imply.
Instead, the Booths started working on entering the Brownfield Program.
The program's purpose is to encourage the cleanup and redevelopment of contaminated vacant, abandoned or underutilized properties. It’s funded by the Delaware Hazardous Substance Cleanup Act and the Brownfield Revolving Loan Fund.
Since the program is limited to parties that are not the site owners, but rather buyers interested in redeveloping a property, the Booths donated the property to Restoration Worship Center, a Georgetown nonprofit run by Pastor Tambara Stewart.
Stewart and the Booths submitted a brownfield cleanup program application September 28, 2016.
A letter from Site Investigation and Restoration Section Administrator Timothy Ratsep, dated the same day, stated, “Please note that due to DNREC’s current funding restraints, brownfield reimbursement funds may not be available for the foreseeable future.”
Sussex Living submitted a Freedom of Information Act request to DNREC, requesting "all financial documents related to the brownfield program from 2017 to present, including bank statements, check copies, etc." According to DNREC, the request was "overly broad and vague" and a more specific request was necessary.
A narrowed request has not yet been answered.
However, according to Deputy Attorney General Robert Phillips, the department has spent about $260,000 on the Thoro Kleen property, including $174,500 paid to Restoration Worship Center’s environmental consultant and about $91,000 for DNREC supervision. Cleanup has not begun.
Since it is possible chemicals from Thoro Kleen leached into groundwater, off-site contamination was and is a possibility. Ratsep cautioned that the brownfield program would not cover costs for off-site contamination, and again requested a voluntary cleanup agreement for that aspect.
However, the Booths point out that there were at least two other dry-cleaning businesses in Georgetown before and during Thoro Kleen’s years of operation, including the one across the street that William and Iva Booth originally bought. Any groundwater contamination could potentially be attributed to those.
In addition, PCE had been detected in Georgetown groundwater prior to the Booths’ time operating Thoro Kleen, although the Booths claim they were unaware of that.
Ratsep signed the brownfield agreement December 1, 2016.
Even with the brownfield agreement in place, off-site liability was still an issue.
The Booths hired lawyer Michael Parkowski to argue that they were not required to participate in the voluntary cleanup program, as DNREC kept insisting. They were “innocent buyers,” Parkowski said. Since they had not known about the chemical releases at Thoro Kleen, they were therefore not liable for cleanup.
In 2017, Parkowski corresponded with Phillips. He cited the Hazardous Substance Cleanup Act, part of the Delaware Code. Per one section, the Booths are not liable if they can establish that they didn’t know of any hazardous substance releases, and made “all appropriate inquiries” to learn of any potential release before buying the property.
Phillips argued the Booths were informed DNREC was investigating high levels of PCE in Georgetown’s groundwater in 1985, therefore he had not made “all appropriate inquiries” and was not an innocent buyer.
That’s Georgetown groundwater in general – not the groundwater on the Thoro Kleen property.
“I’d never buy another property,” Booth said. “You never know what’s in the groundwater.”
Moreover, the HSCA and its “all appropriate inquires” passage didn’t exist in the Delaware Code in 1985.
Phillips also cited a portion of the Delaware Code when he said that even if the Booths were indeed innocent buyers, simply owning and operating the business thereafter made them liable.
“They’re only looking at one part of the law. They’re not taking all of it into account,” Booth said.
Phillips, like Ratsep, insisted the Booths enter the voluntary cleanup program due to contamination that might exist outside the Thoro Kleen site.
Parkowski’s office called that “curious.” since they were unaware of DNREC ever before limiting brownfield agreements that way. “It would effectively strip most [brownfield agreements] of their value to brownfields developers if liability for off-site conditions remains unsolved,” Parkowski’s office stated.
Recently, DNREC acted to clarify liability.
In March 2019, Secretary Shawn Garvin revised the department’s Regulations Governing Hazardous Substance Cleanup to include: “Remediation of contamination that extends beyond the boundaries of a brownfield property is not the responsibility of the brownfield developer, but rather all other potentially responsible parties.”
The change is not retroactive.
Garvin has not responded to emails regarding the Booth case. Michael Globetti of DNREC public affairs responded to multiple emails with “If you are an owner, operator, or transporter, you are potentially liable and are not eligible for Delaware’s Brownfields Program.”
Taking it to court
In March 2017, Senator Brian Pettyjohn intervened.
He defended the Booths in an email to Garvin and other relevant DNREC employees, stating that they were failing to consider certain facts, like other, nearby contamination sites. He urged the department to move forward with the brownfield program and offered to host a meeting.
DNREC obliged, but Garvin stood by the assertion that the Booths are liable for cleanup costs.
“I am disappointed … that DNREC continues to drag this process out, and is using every loophole at its disposal to deny your innocent buyer claim,” Pettyjohn wrote the Booths.
He did not reply to a request for further comment.
In June 2017, the Booths appealed to the Environmental Appeals Board, the first step in challenging a decision of the secretary.
The board eventually dismissed the appeal because the Booths filed it a few days too late, and a Superior Court judge affirmed that. Phillips argued that Garvin’s decision on liability was merely verbal, so there was nothing to appeal in the first place. The case is headed to the Supreme Court of Delaware and will be heard later this year.
DNREC gave them something new to appeal October 31, 2017, with a secretary’s order. It made no mention of their attempts to participate in the brownfield program, only their lack of participation in the voluntary cleanup program.
The Booths promptly filed another EAB appeal, but DNREC didn’t wait for the board’s decision before going to Superior Court in October 2018.
Around this time Margaret Booth’s nephew, attorney Chris Coggins, stepped in.
“DNREC filed the Superior Court lawsuit based on the secretary’s order, which was also the subject of the Booths’ appeal to the EAB,” Coggins said. “So, we asked the EAB, ‘If the EAB overturns the Secretary’s Order, must DNREC drop the Superior Court lawsuit?’ and the EAB refused to confirm such a ruling would be binding on DNREC.”
Phillips never weighed in on whether DNREC would abide by an EAB ruling. So the Booths withdrew the EAB appeal, thinking they’d have their day in Superior Court.
But Judge Jeffrey Clark saw that as a major misstep. In June, Clark wrote in a memorandum opinion that the Booths “abruptly withdrew their [EAB] appeal immediately before the scheduled hearing.”
“Given the Booths’ litigation choices, they have forfeited their right to now challenge their liability when they had a full and fair opportunity to do so,” Clark wrote.
Jury to decide
DNREC’s case against the Booths is scheduled to go to a jury trial in February 2020. Due to Clark’s opinion, rather than focusing on liability, the case is now focusing on what DNREC can recover monetarily.
“The statute DNREC sued on says remedial costs, [those] that the state incurred as a result of the Booth’s refusal to comply with the secretary’s order. That’s important,” Coggins said.
It’s important because the secretary’s order states the Booths became noncompliant September 28, 2018. To a layman, that would appear to mean the only costs DNREC is seeking to recover are legal costs since that date. However, Coggins think it’s unlikely they’ll settle for that.
“I’m pigheaded,” said Booth. “I’m probably going to go bankrupt, but this isn’t right.”