In Re: 512 Main Street, Stanton, DE 19804

• Court: Superior Court of Delaware
• Decided: October 24, 2025
• Docket: N25M-04-017 DJB
• Status: Published

Opinion

IN THE SUPERIOR COURT OF DELAWARE

IN RE: 512 MAIN STREET, ) STANTON, DE 19804 ) N25M-04-017 DJB )

Date Submitted: September 8, 2025 Date Decided: October 24, 2025

ORDER

ON DNREC’S PETITION FOR ACCESS TO PROPERTY – GRANTED. ON THE MOTION TO DISMISS THE PETITION – DENIED.

This matter involves an area of contaminated soil located at 512 Main Street,

in Stanton, Delaware (hereinafter “the Property”). 1 The Property is owned by the 0F

Ralph V. Estep Family Trust (hereinafter “the Trust”). 2 The State of Delaware’s 1F

Department of Natural Resources and Environmental Control (hereinafter

“DNREC”) filed a Petition seeking access to the Property to address the

contamination that resulted when an Underground Storage Tank (hereinafter “UST”)

released petroleum. The Trust filed a Motion to Dismiss the Petition. 3 A two-part 2F

hearing was held on the Petition on August 14 and 25, 2025. 4 Given the serious 3F

public hazard that exists on the Property that requires remediation to prevent further

1 IN RE: 512 MAIN ST, STANTON, DE 19804, N25M-04-017 DJB, Superior Court Civil Docket Item (hereinafter “D.I.”) 1. 2 D.I. 1, ¶ 5. The Trust is not the sole owner of the Property. 3 D.I. 4. 4 D.I. 19, 24. contamination of the water basin that supplies water to the majority of New Castle

County residents, and upon a finding that due process has been satisfied, the Petition

to Access the Property is GRANTED for the reasons detailed herein. The Motion

to Dismiss the Petition is DENIED.

I. FACTUAL AND PROCEDURAL HISTORY

The Property at issue previously held a UST until December of 2016, when it

was removed. 5 During removal, release of petroleum was detected. When DNREC 4F

learned of the release, it sent the Trust, Mr. Robert Duncan, and STTP, LLC

(collectively “the Responsible Parties” 6) a letter indicating a hydrogeologic 5F

investigation or excavation of the area impacted by the release was now required. 7 6F

Those initial letters were sent in the Spring and Summer of 2017. 87F

Despite the initial letter, the petroleum release remained unresolved. In

March, May, and October of 2019, DNREC again sent correspondence to the

5 D.I. 1, ¶¶ 4, 6. 6 This term is used here to represent the parties presented by DNREC as being the landowners and otherwise “Responsible Parties” collectively and is not a legal ruling or determination that the parties so referred are deemed the Responsible Parties pursuant to 7 Del. C. § 7406. That action is not before the Court and this term is used for convenience purposes in this Order only. 7 Id. at ¶ 6. 8 Id. at ¶ 6. Responsible Parties. 9 Having once again not received a response, DNREC issued 8F

a Notice of Violation in December of 2020. 10 9F

In 2023, DNREC issued two Secretary Orders to the Responsible Parties. The

first Order, issued on January 17, 2023, outlined the required action to resolve the

petroleum release. 11 As the release still had not been addressed, the second, June 10F

23, 2023, Order informed the Responsible Parties that DNREC was taking control

over the corrective action and would be addressing the release itself. 12 11F

On May 21, 2024, DNREC’s contractor attempted to perform a hydrogeologic

investigation on the Property. 13 During the visit, DNREC alleges Mr. Ralph Estep 12F

confronted the contractor, who “used his car to run over traffic cones placed to

protect the workers performing the investigation.” 14 This conduct stopped the 13F

investigation for the day, but the contractor returned the next day and completed the

investigation. 15 14F Mr. Estep denies this series of events. 16 15F The investigation

confirmed a petroleum release occurred and that the chemicals presently remain and

were above risk-based screening levels, which required further action. 17 DNREC 16F

9 Id. at ¶ 7. 10 Id. at ¶ 8. 11 Id. at ¶ 9. 12 Id. at ¶ 10. 13 Id. at ¶ 11. 14 Id. 15 Id. at ¶ 12 16 D.I. 24. 17 Id. at ¶ 13. sent notice of the need to implement excavation activities to the Responsible Parties

on December 27, 2024. 1817F

In response to the December 27 notice, a letter purportedly on behalf of the

Trust, penned by Mr. Richard Abbott acting as an agent of the Trust, which indicated

that any attempt to enter the Property would be trespass, and offered to compromise

if the work would be performed at the State’s expense. 19 DNREC declined the offer 18F

and notified the Responsible Parties of environmental testing set to occur in the first

and second weeks of April. 20 DNREC also sent a reminder of this testing on March 19F

24, 2025. 21 20F

On March 27, 2025, Mr. Abbott sent another letter to DNREC that stated the

police would be called should DNREC attempt to enter the Property. 22 In response 21F

to that letter, DNREC filed the instant Petition seeking and Order from the Court

granting access to the Property pursuant to 7 Del. C. §7408(e). 23 On April 29, 2025, 22F

the Trust filed a Motion to Dismiss. 24 The Trust also wrote to the Court insisting 23F

DNREC violated procedural rules such that assigning the matter to a Superior Court

18 Id. at ¶ 14. 19 Id. at ¶ 15. 20 Id. at ¶ 16. 21 Id. at ¶ 17. 22 Id. at ¶ 18. 23 Id. at ¶ 19. 24 D.I. 4. Judge, rather than a Commissioner, was appropriate. 25 That request was granted, 24F

and the Court scheduled a status conference. 26 25F

On June 11, 2025, a status conference was held to discuss the pending Petition

and the Motion to Dismiss at which times deadlines were set, as well as a hearing

date. 27 DNREC timely filed its Response to the Motion on June 27, 2025. 28 A 26F 27F

hearing was held over the span on two days on August 14, 2025, and August 25,

2025. 29 At the hearing, DNREC presented the testimony of its employee Ross 28F

Douglas Elliot, a Hydrologist, licensed under Title 24, Chapter 36 of the Delaware

Code. Through Mr. Elliot, DNREC presented evidence of a Hydrogeologic Report

that showed the results of the soil sampling study conducted on the Property and the

levels of toxins released as a result of the petroleum leak. The proposed corrective

measures were testified to by Mr. Elliot. As was the public hazard that currently

exists and what would continue to exist should this not be remedied. 30 29F

The Trust called Ralph Esteep, who testified to the number of tenants on the

Property currently, and the potential harm that may arise should DNREC take

corrective action. Post hearing, the parties each supplied the Court with

25 D.I. 5. 26 D.I. 6 and 7. 27 D.I. 10. 28 D.I. 11. 29 D.I. 19, 24. 30 D.I. 19. supplemental filings. At the Court’s request, DNREC submitted its updated

Proposed Order, clarifying the action DNREC now sought in relation to the

Petition. 31 DNREC was also asked to provide the Court and counsel with updated 30F

details regarding the proposed remediation. The requested materials and Order were

submitted on September 4, 2025. 32 The Trust was given the opportunity to respond 31F

and did so on September 8, 2025. 33 This matter is now ripe for decision. 32F

II. STANDARD OF REVIEW

The Motion to Dismiss the Petition does not indicate upon which Rule of Civil

Procedure it is based. In it, the Trust argues that the Petition, which was sought

under 7 Del. C. §7408(e), failed to follow procedural requirements. The motion

challenges whether the Trust has been afforded due process under 7 Del. C. §

7408(e). In determining a due process challenge, the Court must weigh the

“Eldridge factors” set out by the United States Supreme Court in Mathews v.

Eldridge. 34 Under Eldridge the Court must examine: 33F

1. the private interest that will be affected by the official action;

2. the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;

31 D.I. 27. 32 Id. 33 D.I. 28. 34 Mathews v. Eldridge, 424 U.S. 319, 333 (1976). 3. and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedures would entail.

To the extent the Trust argues the Petition fails to state a claim upon which

relief can be granted under Delaware Civil Rule of Procedure 12(b), the court must

decide whether there are any reasonably conceivable set of circumstances,

susceptible of proof, upon which a plaintiff may recover. 35 Pursuant to Rule 12 34F

(b)(6), the Court will accept all well pleaded factual allegations as true, accept even

vague allegations as “well pleaded” if they give the opposing party notice of the

claim, and draw all reasonable inferences in favor of the non-moving party. The

Court will not dismiss the claims unless the plaintiff would not be entitled to recover

under any reasonably conceivable set of circumstances. 36 However, given that this 35F

is not a traditional civil suit and there is no plaintiff, the review of this Petition is

limited to what is being challenged in the Motion to Dismiss – whether due process

has been afforded.

III. ANALYSIS

The Trust’s Motion to Dismiss argues DNREC’s Petition violated the

procedural requirements enumerated in 7 Del. C. §7408(e), for filing “the Petition

35 Vinton v. Grayson, 189 A.3d 695, 700 (Del. Super. 2018) (quoting Super. Ct. Civ. R. 12(b)(6)). 36 Id. (quoting Central Mortgage Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 535 (Del. 2011)). as a miscellaneous civil action and arrogated for itself the prerogative to schedule

the hearing.” 37 The Trust submits 7 Del. C. §7408(e) requires the Court schedule a 36F

hearing after, “giving due consideration to the immediacy of the facts presented in

the petition,” which the Trust alleges did not occur here in its initial filing. 38 37F

Further, the Trust contends “the summary hearing procedure afforded by

§7408 does not afford the due process necessary to enter the Property and make the

substantial changes DNREC proposes.” 39 The Trust submits DNREC’s causes of 38F

action should have been pursued under Title 7, Chapter 60, the avenue upon which

DNREC initially proceeded the first Secretary Order was issued on January 17,

2023. According to the Trust, DNREC abandoned its Chapter 60 proceeding

because its claims are barred by the three-year statute of limitations prescribed in 10

Del. C. §8106.

Section 7408(e) of Title 7 of the Delaware code provides:

[DNREC] is authorized to petition the Superior Court for an order for access to real property, to investigate the possibility of underground migration of released regulated substances, from an underground storage tank or facility, to the real property, to control or contain released regulated substances that may be on the real property, and to undertake corrective action on the real property. The Superior Court shall schedule a hearing on the petition, giving due consideration to the immediacy of the facts presented in the petition. The Department shall give the owners of record of the real property notice of the hearing on the petition at least 10 days before the hearing…For good cause shown,

37 D.I. 4. 38 Id. 39 Id. the Superior Court shall grant the petition and order access to the real property in furtherance of the purpose of this chapter and for protection of the environment, for specified actions and goals, and on such terms and conditions, as may be supported by the facts and circumstances presented... 4039F

DNREC followed 7 Del. C. §7408(e)’s procedural requirements. DNREC initially

filed the Petition in Superior Court on April 2, 2025. 41 A Notice of Hearing on the 40F

Petition for Access was sent on April 9, 2025. 42 The Petition was promptly assigned 41F

to a Superior Court Judge, and an initial status conference was scheduled for June

11, 2025. Both parties were present at that meeting where the Court scheduled a

hearing on July 21, 2025. The Trust agreed to also argue the Motion to Dismiss on

that date.

A. Section 7408 (e) of Chapter 7 Provides Due Process Rights.

Despite the April 9, 2025, notice and the June 11, 2025, conference, the Trust

argues its due process rights were violated. “The fundamental requirement of due

process is the opportunity to be heard at a meaningful time and in a meaningful

manner.” 43 42F

[D]ue process is flexible and calls for such procedural protections as the particular situation demands…This Court has explained that where only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process…Thus, the necessity of prompt

40 7 Del. C. §7408(e). 41 D.I. 1. 42 D.I. 2. 43 Cohen v. State ex rel. Stewart, 89 A.3d 65, 86-87 (Del. 2014) (quoting Matthews v. Eldridge, 424 U.S. 319, 333 (1976)) (emphasis added). action by the State or impracticability of providing a meaningful pre- deprivation hearing, coupled with the availability of post-deprivation process to assess the legality of the official action, may satisfy the requirements of procedural due process. 44 43F

In evaluating the “Eldridge factors,” DNREC’s Petition under 7 Del. C. § 7408(e)

was reviewed to determine the private interest that affected by the official action, the

risk of an “erroneous deprivation of such interest through the procedures used, and

the probable value, if any, of additional or substitute procedural safeguards,” and

“the Government's interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedures would entail.” 4544F

After careful consideration of these factors, it is clear that no due process

violation occurred. Communication regarding the chemical release on the Property

dates back to 2017. Years later, on April 5, 2025, the Trust was sent notice of the

Petition filed in Superior Court. Counsel was present at the scheduling conference

where a hearing date was agreed upon. All parties had the opportunity to be heard

at the two-day hearing. Thus, the Trust’s contention that proper notice wasn’t given

became moot when the matter was fully heard at the hearing.

The Trust argues DNREC’s Petition pursuant to 7 Del. C. §7408(e), rather

than proceeding under Chapter 60, deprived the Trust of proper notice. However,

the relief sought by DNREC under 7 Del. C. §7408(e) is different and unavailable

44 Id. at 87 (internal citations omitted). 45 Id. at 86-87. under Chapter 60. “DNREC’s Secretary is responsible for enforcing the provisions

of the [Environmental Control] Act.” 46 Thus, if a responsible party fails to “take 45F

measures for the prompt control, containment, and removal of the released regulated

substances to the satisfaction of the Department,” pursuant to 7 Del. C. §7406, a

Secretary’s Order could be issued requiring that party to take action and do so. 47 46F

However, the Secretary’s Order does not authorize DNREC to take corrective action.

Instead, DNREC may access private property to perform a corrective action if an

owner allows access, by Petition, 48 or in the event of an emergency. 49 47F 48F

1. Consideration for the private interest that will be affected by the official action.

Due consideration has been given to the private interest affected by DNREC’s

proposed plan. The testimony from Mr. Esteep was received and acknowledged that

his accounting business is upon that property, but he is also the landlord to tenants

both in a structured building and a food truck that is stationed and electrically set up

in the parking lot. Mr. Esteep detailed that there is a functioning liquor store tenant,

who has allotted parking spaces which would be affected should remediation work

cause the concrete to be torn up temporarily. Additionally, a residential tenant

46 State of Delaware Dep’t of Nat Res. & Env’t Control v. McGinnis Auto & Mobile Home Salvage, LLC, 225 A.3d 1251, 1254 (Del. 2020). 47 Id. at 1255 48 7 Del. C. §7408 (e). 49 7 Del. C. §7408 (f). resides in an apartment above the liquor store. Finally, the original proposed

remediation plan required movement of the affixed food truck.

However, the updated remediation plan submitted by DNREC minimized the

need for the food truck relocation. In addition, the timeline proposed is narrowly

tailored in consideration of the unavoidable inconvenience to the landowner and

tenants. No one is denying there will be an inconvenience to private interests should

remediation occur.

Notably, and as discussed at the hearing, regardless of any Court action, Mr.

Esteep is now keenly aware of the dangers lurking on his property and the potential

carcinogens seeping into the water basin used by Artesian Water Company to supply

water to the majority of New Castle County residents. This, in and of itself, obviates

the ability of Mr. Esteep to argue that the DNREC Petition so negatively affects any

private interest to prevent remediation. At a minimum, a prudent person with this

knowledge would likely explore remediation and resolution of the situation. And

the issue of liability is not before the Court nor necessary for a decision on the

Petition. However, this fact is relevant to the consideration of the private interest

affected, since arguably action may be required regardless of this Court’s decision

on the challenged Petition. 2. The risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.

As noted, private interests will be affected by the proposed remediation.

However, while the testimony regarding this was accepted and acknowledged, so

too, is the testimony regarding the very real danger to the public that exists and will

continue to exist if remediation does not occur. The purpose of the Court’s request

for additional submission and remediation proposal from DNREC was to evaluate

whether there would be an erroneous deprivation or substitute procedural

safeguards. This was also explored by the Court’s questioning during the hearing

and arguments on the Petition. After duly considering the evidence, the new

proposed Order and remediation plan sufficiently alleviates any concerns that there

will be an erroneous deprivation and that no substitute procedural safeguards are

required.

3. The Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedures would entail.

The testimony provided by DNREC’s expert, Mr. Elliot, was compelling and

demonstrated a compelling need for the proposed remediation. Following a careful

review of the testimony presented, as well as the non-objected-to exhibits 50 leave no 49F

50 The Trust objected to the full admission of the Hydrogeologic Report at the hearing. While testimony was heard, the Court need not and does not rely upon other conclusion that the Government has a compelling interest in remediation. No

other substitute procedures are possible here. This is a public health hazard and must

be corrected.

B. Good Cause Exists to Grant Access to the Property

After many unsuccessful attempts to get the Responsible Parties to address

the chemical release, DNREC appropriately filed a Petition for access under 7 Del.

C. §7408(e). In so doing, DNREC seeks a Court Order allowing DNREC to enter

the property to clean up the chemical release. DNREC bears the burden of

establishing that good cause exists. Following consideration of all of the evidence

presented at the hearing, it is clear that DNREC has satisfied its burden.

DNREC has been contacting the Responsible Parties about the petroleum

release since 2017. When DNREC finally preformed an investigation on the

Property approximately seven (7) years later, it was able to confirm the chemicals

posed a risk to public safety. Delaying this process has continued to hinder

DNREC’s efforts to address the chemical release and protect the public from toxins

and carcinogens. This public includes the tenants on the Property, as well as Mr.

Esteep. Thus, judicial intervention is necessary; the Petition sought by DNREC for

the portions to which were objected, as sufficient evidence exists to support the conclusions without consideration of the full report. access to the Property is GRANTED, as good cause exits as no due process violation

occurred.

C. DNREC Is Not Subject to The Three-Year Statute of Limitation’s Period

The Trust also argues DNREC is procedurally barred by the three-year statute

of limitations prescribed in 10 Del. C. §8106. This argument is also unsuccessful.

“As a general matter, the doctrine of sovereign immunity permits the State to bring

actions in its sovereign capacity without being subject to statutes of limitation that

govern private parties.” 51 The Trust has not provided, nor is the Court aware, of any 50F

statue limiting the State’s sovereign immunity such that the Petition should be

dismissed.

D. CONCLUSION

Public safety concerns mandate DNREC’s access to the Property and access

will be allowed in accordance with the supplemental proposed Order. Due process

has been afforded to the Trust. Even under a review of this motion pursuant to

Superior Court Civil Rule of Procedure 12(b), the Motion is without merit.

Therefore, on this 24th day of October, 2025, upon review and consideration

of Petitioner Delaware Department of Natural Resources and Environmental

Control’s (“DNREC”) Petition for Access filed on April 2, 2025;

51 State ex rel. Brady v. Pettinaro Enterprises, 870 A.2d 513, 526 (Del. Ch. 2005) (citing Mayor & Council of Wilmington v. Dukes, 157 A.2d 789, 794 (Del. 1960)). WHEREAS, DNREC submitted its Petition for Access pursuant to 7 Delaware

Code section 7408(e), seeking access to a property at 512 Main Street in Stanton,

Delaware, 19804 (the “Property”);

WHEREAS, DNREC, at a hearing on August 12th and continued on August

20th, 2025, and in its supplemental submissions has established good cause to access

the Property and perform remedial actions as necessary to protect human health and

the environment at the Property;

NOW, THEREFORE it is hereby ORDERED that DNREC and/or its

contractor(s) may access the Property as follows:

1. DNREC and/or its contractor(s) may access the property for two (2) days

for the purpose of taking soil borings and soil samples to characterize the soil to be

disposed in the over excavation process.

2. DNREC and/or its contractor(s) may access the Property daily, for thirty

(30) continuous days, between the hours of 8 A.M. and 6 P.M., to perform an over

excavation of the release. Those thirty (30) continuous days shall commence when

DNREC and/or its contractor(s) commence the over excavation process.

a. The over excavation will be performed pursuant to a workplan that DNREC

shall share with the Property owner and shall submit to the Court.

b. The workplan shall incorporate reasonable efforts to minimize the

disruption to the Property owner’s tenants, but such efforts will not include any actions inconsistent with workplace and public safety considerations, and with the

effective removal of contamination from the soil and groundwater at and under the

Property.

c. Two weeks prior to commencement of the over excavation, DNREC and/or

its contractor(s) shall meet, in person or virtually, with the Property owner and any

tenants interested in attending. The purpose of the meeting shall be to explain the

workplan, the efforts that will be taken to minimize disruption, routes of access to

the parcel by customers, and the schedule of remedial activities on the Property. If

access through the entry and parking area of the Ralph V. Estep firm is required to

facilitate customer access to the operations of the tenants, the Property owner shall

allow such access.

d. During over excavation operations, DNREC and/or its contractors, using

their professional judgment, shall have the right to make the final determination

about all over excavation operations, and all workplace and public safety measures,

at the site.

e. At least two days prior to the commencement of over excavation operations,

the Property owner shall remove, or cause its tenants to remove, any storage units or

other objects that may interfere with the excavation area, as set forth in the workplan.

This obligation may also extend to the onsite taco truck if the workplan determines

that moving the taco truck is necessary. The Property owner, or it’s tenant, shall, if necessary, at least two days prior to commencement of over excavation operations,

relocate the taco truck to an area away from the area of over excavation as reflected

in the workplan. If relocation of the taco truck or the storage boxes to the parking

area of the Ralph V. Estep firm is recommended by the workplan, the Property owner

shall allow such access.

3. At the conclusion of the over excavation, and during the thirty (30)

continuous day access period referenced in paragraph 2, above, DNREC and/or its

contractor(s) shall fill the over excavation area with appropriate backfill material,

and shall repair any damage to the asphalt parking area surface caused by the over

excavation process. All efforts shall be made to restore the parking area, as closely

as possible, to its original condition prior to the over excavation process.

4. Within thirty (30) days after the conclusion of the over excavation, DNREC

and/or its contractor(s) may access the Property for a period of one (1) calendar week

to install groundwater monitoring wells.

5. After the groundwater monitoring wells are installed, DNREC and/or its

contractor(s) may then access the Property for the purpose of taking quarterly

samples from all installed monitoring wells, and to make any repairs to monitoring

wells as necessary. Neither the Property owner nor its tenants shall take any actions

to interfere with the operation of these monitoring wells. Access by DNREC and/or

its contractor(s), shall be permitted for a for a period of two (2) years from the date of the initial installation of the monitoring wells, for purposes of quarterly

monitoring and for monitoring well maintenance and repair.

6. This Court shall retain jurisdiction over this matter until the conclusion of

the two (2)-year monitoring period as set forth in paragraph 5, above. DNREC shall,

at the conclusion of the two (2)-year monitoring period, and as soon as the report is

reasonably available, provide to the Court and to the Property owner a report on the

status of the remedial action at the Property.

7. Should DNREC conclude, at any point after over excavation, that

additional remediation to the Property is necessary, DNREC shall submit an

amended Petition explaining in detail any proposed additional remediation, and a

further hearing may be held to evaluate the impacts on the Property of such proposed

further remediation.

IT IS SO ORDERED.

_________________________ Danielle J. Brennan, Judge

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