ELR Citation: ELR 20602
No(s). 367, 1985 (Del. Feb 12, 1986)

The court holds that the Secretary of the Delaware Department of Natural Resources and Environmental Control did not violate due process by revoking a plastics manufacturer's operating permits without a hearing. The plaintiff is not entitled to a preliminary injunction to stay the revocaton without establishing a reasonable likelihood of success on the merits even though the court holds that an unexpected forced shutdown due to a permit revocation will cause irreparable injury.

The court rules that the Secretary's authority to impose conditions on permits under the Delaware Environmental Control Act impliedly includes the power to revoke those permits. The court holds that the plaintiff's record of permit violations imperilling public safety justified the Secretary's emergency revocation and that the Secretary did not deny the plaintiff due process by acting without a prior hearing. Extraordinary circumstances can justify deprvation of life, liberty, or property without a prior hearing when an important government or public interest demands prompt action and the state has maintained strict control over its monopoly of legitimate force. The court further rules that neither the Secretary nor the Department of Natural Resources and Environmental Control is subject to the Delaware Administrative Procedures Act and need not follow its revocation procedures. The court holds that the Secretary provided sufficient notice when the permit revocation reflected a determination that the plaintiff could not operate the plant within the permit conditions. Finally, the court holds that where the Secretary made a reasonable finding of imminent threat to public safety, and the danger outweighs the injury to the plaintiff, the plaintiff has not demonstrated good cause for a stay.

Counsel for Appellant
Stephen E. Herrmann, Richard J. Abrams, Richard G. Elliot Jr.
Richards, Layton & Finger
One Rodney Sq., P.O. Box 551, Wilmington DE 19899
(302) 658-6541

Counsel for Appellees
Jeanne L. Langdon, Fred S. Silverman, Loren C. Meyers
Department of Natural Resources & Envtl. Control
89 Kings Hwy., Box 1401, Dover DE 19901
(302) 736-4403

Before CHRISTIE, C.J., HORSEY, and MOORE, JJ.