In a matter of first impression in Delaware, the Delaware Superior Court recently held that the Department of Natural Resources and Environmental Control (“DNREC”) does not have authority under its cease and desist powers to mandate that an alleged violator take affirmative corrective action. See Del. v. McGinnis Auto & Mobile Home Salvage, LLC, K17A-09-001 JJC (Del. Super. Feb. 21, 2019). The court decided that when DNREC seeks to require a violator to take affirmative action, DNREC must obtain appropriate injunctive relief in Delaware’s Court of Chancery.

The case related to alleged environmental violations by McGinnis Auto & Mobile Home Salvage, LLC (“McGinnis”). DNREC had cited McGinnis for improperly storing solid waste and operating a materials recovery facility without a permit. After issuing a series of violations against McGinnis, DNREC’s Secretary issued Secretary’s Order No. 2016-WH-0031 (the “Order”) pursuant to its cease and desist powers under 7 Del. C. § 6018. The Order required McGinnis to immediately cease and desist any operations that involved creating and storing solid wastes, but the Order also purported to impose affirmative duties on McGinnis. Specifically, McGinnis was ordered to, among other things, remove all solid wastes from the site and provide certain information to DNREC, including a detailed explanation of McGinnis’s procedures for handling, disposing, and storing materials removed or within from mobile homes.

On appeal before the Superior Court, McGinnis contended that DNREC’s Secretary lacked authority to impose such affirmative duties on an alleged violator absent a court order and the court agreed. The court looked to the Secretary’s enumerated statutory enforcement powers to determine whether he was authorized by the General Assembly to issue mandatory injunctions. Section 6018, the provision at issue, provides that the Secretary has the authority to issue a “cease and desist” order for a violation of “any rule, regulation or order or permit condition or provision of this Chapter.” In holding that this provision did not authorize orders requiring affirmative correction action, the court relied on the fact that the common, ordinary meaning of the words “cease” and “desist” was “to stop.” Further, the court emphasized that, among his other enforcement powers, the Secretary was authorized to file for temporary restraining orders or permanent injunctions in the Court of Chancery. See 7 Del. C. § 6005(b)(2). The court reasoned that such an enumerated power would be rendered meaningless if the Secretary could merely order mandatory injunctive relief on his own.

It is important to note that the court’s holding addressed only whether the Secretary has the authority to use cease and desist powers to order affirmative corrective action; the court did not hold that the Secretary lacks all authority to mandate affirmative corrective action. The court noted, for example, that the Secretary has authority to order corrective action in “limited areas” such as in the event of an imminent hazard caused by releases of hazardous waste.

Given the case's implications, it will be interesting to monitor whether DNREC appeals the court’s decision to Delaware’s Supreme Court.