State v. General Chemical Corp.

• Decision Date: 19 September 1988
• Citation: 559 A.2d 292
• Parties: STATE of Delaware v. GENERAL CHEMICAL CORPORATION, Defendant. . Submitted:
• Court: Delaware Superior Court

Page 292

559 A.2d 292

STATE of Delaware v. GENERAL CHEMICAL CORPORATION, Defendant.

Superior Court of Delaware New Castle County.

Submitted: Sept. 19, 1988.

Decided: Oct. 25, 1988.

Kevin P. Maloney, Dept. of Justice, Wilmington, for the State.

Jeffrey S. Goddess, and John C. Laager, of Saul, Ewing, Remick & Saul, Wilmington, for defendant.

OPINION

GEBELEIN, Judge.

This is a criminal prosecution for an alleged violation of 7 Del.C. § 6028. ¹ The criminal charge was originally brought in the Court of Common Pleas. The State nolle prossed the charge and then brought it by indictment in Superior Court on October 9, 1987. The defendant, General Chemical Corporation ("General"), filed a motion to dismiss on December 9, 1987, alleging four independent grounds requiring dismissal. ² This is the Court's ruling on that motion.

I.

On Sunday, June 28, 1987, at approximately 11:06 p.m., General discharged approximately 180 pounds of sulphur dioxide and 25 pounds of sulphur trioxide into the ambient air from its Claymont, Delaware facility. Plant personnel immediately responded to the situation. Unfortunately, at the time the emissions occurred, the electricity in the northern part of the facility including the office failed, hindering efforts to control the emissions. Jerry B. Piper, the plant supervisor on that shift, left the personnel who were attempting to control the leak and started calling off-site plant employees so that they could respond. Piper then called the adjacent Airco and Sun Oil Refineries. At 11:16, he called James Shepard, the Manager of Technical and Environmental Services, at his home. At 11:20, on Shepard's instructions, Piper phoned emergency 911 so that emergency fire personnel could respond to the situation by closing Route 13, where the plant is located, and ensuring that any endangered people would be safe. Piper made these phone calls by flashlight.

Electricity was restored at approximately 11:36 p.m., and Route 13 was being reopened at 11:50 p.m. when Shepard arrived on the scene. He had left his home immediately after Piper's phone call.

Upon arrival, Shepard spoke to Assistant Chief Edward Anderson of the Claymont Fire Company. Shepard's primary concern at this point was potential overflow of the sanitary sewer system caused by a buildup due to the loss of electricity. The plant employees also were attempting to secure the electricity which had been restored at 11:36. The discharge ended two minutes later. As Shepard arrived, the sewer system was being restarted.

After his conversation with Chief Anderson, Shepard proceeded to the plant office and wrote a summary of events so that he could report to the Department of Natural Resources and Environmental Control's ("DNREC") 800 telephone number. As he was about to phone, John Mohrman of the DNREC State Emergency Response Team called him requesting an update of the situation. This phone call arrived at 12:02 a.m., June 29, approximately 56 minutes after the discharge began and 24 minutes after it ended. Shepard gave Mohrman a full report and at 12:04 a.m., Shepard phoned the DNREC 800 number.

Later in the day on June 29, Shepard gave Ali Mirzakhalili of the DNREC a full report during regular office hours. General submitted a written report on July 2, 1987. General was charged in August, 1987 with a violation of 7 Del.C. § 6028, which required that General report the discharge to the DNREC at General's "earliest opportunity". In its motion to dismiss, General argues four grounds for dismissal. The Court will address these arguments seriatim.

II.

General first contends that 7 Del.C. § 6028, by employing the phrase "earliest opportunity" is vague, both on its face, and as applied to these facts. Although many terms are defined in 7 Del.C. § 6002 which is the definitional section of the subchapter containing § 6028, the term "earliest opportunity" is undefined. General contends that the phrase is ambiguous so as to create a problem as to the constitutionality of § 6028.

When a statute is challenged as being void for vagueness, the Court must first decide if concerns for First Amendment freedoms exist. When a First Amendment issue exists, the Court must review the statute on its face to determine whether the vagueness itself will dissuade persons from constitutionally protected conduct. See, Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). Clearly, a First Amendment issue does not exist in this case. Therefore, the Court makes no finding as to whether the statute is void upon its face.

When a statute being challenged for vagueness does not involve First Amendment freedoms, the statute must be examined in light of the facts of the case at hand. Wright v. State, Del.Supr., 405 A.2d 685 (1979), citing U.S. v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975); Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). We need, therefore, only examine General's vagueness argument in light of all of the circumstances surrounding this case. Wright, supra, at 687.

The Supreme Court of the United States has pronounced the standard to be applied to a statute when it is being challenged for vagueness, and where the First Amendment is not an issue:

That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law [citations omitted]. [T]he decisions of the court, upholding statutes as sufficiently certain, rested upon the conclusion that they employed words or phrases having a technical or other special meaning, well enough known to enable those within its reach to correctly apply them [citations omitted], or a well-settled common-law meaning, notwithstanding an element of degree in the definition as to which estimates might differ, [citations omitted] or, that for reasons found to result either from the text of the statutes involved or the subject with which they dealt, a standard of some sort was afforded. Connally v. General Const. Co., 269 U.S. 385, 391-92, 46 S.Ct. 126, 127-28 (1926).

An issue in this case is whether the term "earliest opportunity" as used in the context of an environmental control reporting statute is clear enough that a person subject to the statute is sufficiently notified just what behavior will conform to the mandate of the statute. For if a person is not so notified, that person will be powerless to choose between lawful and unlawful conduct. Wright, supra; State v. Braun, Del.Supr., 378 A.2d 640 (1977). Enforcement of such a statute would violate an essential precept of due process.

This Court has an obligation in a case where a statute is being challenged for vagueness to construe the statute in such a manner as to avoid the infirmity. State v. Colasuonno, Del.Super., 432 A.2d 334 (1981); Atlantis I Condominium Ass'n v. Bryson, Del.Supr., 403 A.2d 711 (1979). This construction must be done consistent with the legislative intention, if possible. Braun, supra. State v. 0.0673 Acres of Land, etc., Del.Supr., 224 A.2d 598 (1966).

The Water and Air Resources Act, 7 Del.C. Ch. 60, was implemented so that the State could control the development and utilization of the land, water, underwater, and air resources of the State. 7 Del.C. § 6001(a). Included in this control is the development and utilization of the State's natural resources to protect beneficial uses, to assure adequate resources for the future, to assure continued availability of resources for recreational purposes, to conserve wildlife and aquatic life, and to protect the State's natural resources from pollution. 7 Del.C. §§ 6001(a)(2-5). Legislative intent is further pronounced: "This chapter, being necessary for the welfare of the State and its inhabitants, shall be liberally construed in order to preserve the land, air and water resources of the State." 7 Del.C. § 6020. Without a doubt, "[p]rotection of the environment is the paramount consideration." State v. Getty Oil Co. (Eastern Operations), Inc., Del.Super., 305 A.2d 327, 329 (1973). See also, Braun, supra. Not only are the above sections relevant, but legislative amendments to the previous 7 Del.C. § 6028 aid in this interpretation. In the amendment to 7 Del.C. § 6028 effective July 9, 1986, the General Assembly added the very phrase at issue in this case. The prior version of the statute simply required that a person who contributed to a discharge of an air contaminant or pollutant above the amount allowed by permit or absent a permit report the incident to the DNREC. In 1986, the legislature added the phrase "at such person's earliest opportunity after said discharge has occurred." When a legislative body amends a prior enactment by a material change of the language, the Court presumes that a change in meaning was intended. Daniel D. Rappa v. Englehardt, Del.Supr., 256 A.2d 744, 746 (1969); Winter v. Hindin, Del.Super., 136 A. 280 (1926).

The State maintains that the term "earliest opportunity" has such a well-recognized meaning in ordinary English usage that persons of common intelligence do not have to guess as to the meaning and cannot differ as to its application. The State argues that in the context of 7 Del.C. Ch. 60, the term is equivalent to the term "immediately" or the phrase "as soon as the person is aware the discharge is occurring but before the person takes substantial steps to control the discharge or procure the safety of persons and property threatened by the discharge."

This Court agrees with the...