Hughes v. Melson.

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SUPERIOR COURT OF THE STATE OF DELAWARE RICHARD F. STOKES JUDGE P.O. BOX 746 COURTHOU SE GEORGETO WN, DE 19947 William M. C hasanov, Esquire Brown Shiels Beauregard & Chasanov 10 East Pine Street Georgetown, DE 19947 Matthew P . Chesser, Esquire Deputy Attorney General Department of Justice 102 West Water Street Dover, Delaware 19904-6750 Re: Hughes v. Melson C.A. No. 02M-07-018-RFS Submitted: Decided: November 20, 2003 December 2, 2003 Dear C ounsel: On July 31, 2002, plaintiff, the Department of Natural Resources and Environmental Control, filed a suit by and through its Secretary (hereafter DNREC or State ), against defendant Ward A. Melson (hereafter Melson ). Defendant owns a manufactured home commu nity named Co ncord Mobile Home Park (hereafter Concord ) near Seaford, Sussex Cou nty, Delaware. On December 16, 2002, summary judgment was entered against Melson. Thereaf ter, evidence was take n in penalty phase proceedings on February 15, 2003 and on May 16, 2003. Transcripts of the p roce edin gs w ere f iled r ecen tly. After review of the record and arguments, Melson shall pay a fine of $200 per day for the period of May 3, 2002 through January 31, 2003 plus reimbursement of the State s expenses and costs of this action. FINDINGS 1) Concord was established in 1963. 2) Concord was purchased by Melson in 1977. 3) Conc ord has 18 manufa ctured hom es which require w aste water d isposal. 4) Thirteen homes are supported by one septic and disposal system. This system has a cesspool, distribution box, and a drainage field. 5) On and before January 31, 2002, Melson dug a trench and installed pipe with stone to attem pt to prev ent w aste water ov erflo ws f or the system that served the 13 homes. The pipe was fi rst man ufactu red in th e 1980 's, and it was not part of the system which Melson purchased. 6) On January 31, 2002, waste water had ponded at the end of the trench as a re sult of an overflow. 7) The area of sewage was approximately 75 feet long and 50 fe et wide an d the was te water was approximately 4 inches deep. 8) The odor resulting from the overflow was prominent which resulted in a complaint to DNREC, and thereafter the spill was discovered. 9) Melson was not authorized by DNREC to alter the septic system or to extend it by the trench with pipe and stone. 10) Melson caused raw sewage to overflow on January 31, 2002. 2 11) Melson o ffered an explana tion that the liquid was rainw ater. 12) This explanation is not credible, and the State s evidence is more persuasive. 13) Melson offered a n explana tion that the pip e and trench were part of new road construction. 14) This explanation is not credible, and the State s evidence is more persuasive. 15) On Ap ril 2, 2002, M elson wa s served w ith Notice of Con ciliation and Secretary s Order (hereafter Order ), and Melson failed to answer it. Personal Service was made by leaving the Order w ith his wife, a nd he has no credible reason to ex cuse the de fault. 16) While supporting the summary judgment entered against Melson on December 16, 2002 , Melson s failure to an swer the O rder admitte d that: (i) On January 31, 2002, the Department responded to a complaint regarding odors by performing an inspection at Concord Mobile Home Park, located on County Road #20 near Seaford, Sussex County, Delaware. Concord Mobile Home Park is owned by Respondent. Department staff found thirteen (13) mobile homes on the western most road in the park sharing a common septic tank. The tank was fitted with a float system that would allow Respondent to see the effluent level from the outside of the tank. In a shed adjacent to the septic tank, a pump had been installed that pumps wastewater from the septic tank, under pressure, to an excavated trench that extended from the septic system to a wooded area. At the end of the trench was a pool of wastewater overflow approxim ately 50 feet wide by 75 feet long. An attempt was made to speak with Respondent that day but Respondent refused. (ii) On February 1, 2002, Environmental Protection Officer Cook visited the home of Respondent to inform him of the illegal discha rge. At that time, Respondent admitted that he had added a seepage lateral in the wooded area and installed 3 pressure piping from the existing onsite waste water system to the seepage trench. Respondent was cited accordingly for the disposal of waste in a manner not approved by DNREC; and (iii) On February 6, 2002, an inspection of the five (5) mobile homes on the eastern most road in the park was performed. The first two mobile homes showed no visible discrepancies. The third mobile home showed signs of previous effluent overflow and a large depressed area was evident at the rear of the home indicating a possible collapse o f the septic tan k. The fo urth mobile home had a visible steel se ptic tank that had caved in and effluent was visible. The f ifth mobile h ome had a recently constructed cesspool that was full and showed signs of recent overflow of effluent onto the ground. 17) The Or der becam e effective on April 23, 2003. Compliance with the terms of the Order was required within a 10-day period, starting May 3, 2002, and the following actions were required: 1) Upon receipt of this Order, employ the services of a Class F Liquid Waste hauler licensee to pump out the system on a continuous basis to prevent surface discharge. 2) Submit a written record of all pump-out receipts to the Department on a mon thly basis until a replacement treatment and disposal system is in place. 3) Within 10 days of this Order, employ the services of a Class E System Contractor licensee to disconnect and remove all piping, both pressurized and gra vity flow, that was recently installed without a p ermit. 4) Employ the services of a Class D Site Ev aluator licens ee to perform a site evaluation and submit the site evaluation to the Department w ithin 30 days of this Order. 5) Employ the services of a Class C System D esigner licen see to design replacement on-site w astewater treatment and disposal system(s) to service all the mobile homes located at Concord Mobile Home Park. 4 6) Submit an application for the construction and operation p ermit for the replacem ent system to the Departm ent within 30 days of the Site Ev aluation A pproval. 7) Employ the services of a Class E System Contractor licensee to complete the construction and installation of the replacement wastewater treatment and disposal system within 45 days of permit issuance. 18) Melson h as not complied w ith the Order. 19) The life expectancy of the septic system serving the 13 homes was 20 years. 20) The aforesaid system had been in place since 1963. 21) The septic system serving the 13 homes exceeded its life expectancy, and it failed on or before January 31, 2002. 22) The septic systems for 3 o f the rema ining 5 mo bile homes failed on or before February 6, 2002. 23) All the failed systems posed a hazard to public health. 24) DNREC incurred $5,345.16 in expenses in this action. CONCLUSIONS (a) Melson s conduct of constru cting and m odifying the o nsite waste water system at Concord, without a permit from DNREC, violated 7 Del.C. § 6003(b)(2) and Section 3.02000 of the Regulations Governing the Design Installation, and Operation of Onsite Waste Water Treatment and Disposal Systems. (b) Melson s conduct in causing or contributing to the discharge of effluent onto the ground without a permit from DNREC violated 7 Del.C. § 6003(a)(2). 5 (c) The Order became effective on April 23, 2 002, and M elson wa s required to comply with the terms unde r 7 Del.C. § 6005(b)(2) with the first requirement due on May 3, 2002. M elson has n ot satisfied an y requiremen t. (d) Violations o f the Ord er are punis hable by civil penalty of not less than $1,000.00 nor more than $10,00 0 plus costs. Additionally, each day of continued violation shall be considered a separate violation under 7 Del.C. § 6005(b)(1),(c). (e) The penalty for each day of violation began on May 3, 2002. (f) The first penalty hearing was scheduled for January 31, 2003, and, at that time, Melson had violated the Order for 273 days. Evidence was taken on May 16, 2003, and the penalty phase ended. The State suggested a 273 day period for assignme nt of a fine . This period is accepted although Melson has greater exposure. (g) The fine is subject to su spension u nder the C ourt s inhere nt authority to do justice. DNREC v. Front Street Properties, 808 A.2d 120 4 (Del. 2002). (h) As discussed below, $800 of the minimum penalty of $1,000 per day should be suspended for $200 per day for the 2 73 day period totaling $54 ,600.00 plu s $5,345.1 6 in expenses with costs of this action.1 (i) In calculating the penalty, the following factors are considered: 1) The daily amount of $200 adequately addresses the public interest that failed systems m ust be replac ed; 1 DNREC argued for a $250 per day fine while Melson claimed his exposure should be limited to expenses of $5,345.16. 6 2) The figure dete rs Melson from failin g to comply with the terms of the Order; 3) Melson offered disingenuous explan ations for his actions at Con cord and with D NRE C; 4) Melson is primarily culpa ble as Con cord s ow ner; 5) Melson had two prior enviro nmental v iolations at C oncord; 6) The nature and circumstances of the p roblem concern M elson s failure to comply with the O rder, after the s eptic systems at C oncord f ailed. Melson resorted to self help in violation of environmental laws and regulations; 7) Melson s ability to pay includes his income from Concord. The exact amount was not e stablished at the hearings, an d, consequ ently, this is not an activ e facto r in this d ecision . The amount awarded is, however, substantially less tha n the statutory m inimum; 8) Melson realized an economic benefit or savings by failing to com ply with the O rder to attem pt to save the cost of com pliance; 9) The gravity of the offense is significant. Melson is required to obey the Order and cann ot pollute the e nvironment. Melson has ignore d his responsibilities which forced DNR EC to co mmit its limited resources in this enforcement action. DNREC s capacity to protect the environm ent elsewh ere was d iminished; 10) Melson tendered a no contest plea for willfully/negligently discharging a pollutant into surface or ground water without a permit for the circumstance surrou nding t he Janu ary 31, 2002 spill, and a judgment of guilt was entered in State v. Ward Melson t/a Concord Mobile Home Park, ID #0202001882. A $2,500 fine was asse ssed wh ich is taken into acco unt to pre vent an e xces sive penalty. j) Considering the fo regoing, a minimum fine of $1,000 pe r day of violation is imposed for the 273 day period. $800 of that fine is suspended. $200 per day is assessed. 7 Judgment is entered against Melson in the amount of $59,945.16 ($54,600.00 + $5,345.16) plus costs and interest at the legal rate from date of judgment. Melson was liable for a much larger sum. However, the amount imposed satisfies the public and private interes ts at stake in this case. IT IS SO ORDERED. Richard F. Stokes Original to Prothonotary 8

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