Waste Management’s Delaware Recyclable Products, Inc. (DRPI) landfill filed a complaint in Chancery Court Wednesday challenging a New Castle County ordinance limiting the height of landfills in the county to 140 feet above sea level.
The DRPI landfill in the residential Minquadale area off Route 13 is currently permitted to a maximum height of 130 feet — but has applied for permission from the state to expand to 190.
The county limit put in place this summer currently only applies to the DRPI landfill, and operators claim it targets their business.
The complaint references PowerPoint presentations given by Mike Migliore, legal counsel to County Council, at Planning Board and Council meetings "specifically referencing the Landfill and how it would be impacted by the Ordinance."
The complaint calls the 140-foot limit “arbitrary and capricious” — and not related to public health. It also claims County Councilman Dave Carter “dumped" documents into the Council record last-minute in an attempt to help the limit stand up in court.
Carter disagrees. “Everything I put into the Council record was previously entered into the Land Use-Planning Board meeting,” he said. “If you look at that list of documents, every one of them was a public document back in 1992. Like much of this court case, I suspect there are a lot of factual errors they make just seeing if they can get anything to stick to the wall. ”
Carter says the 140-foot limit in the ordinance was chosen in part to accommodate a request from landfill operators. He adds he considered it sufficiently stringent to prevent issues with any future landfills county-wide.
Carter argues the ordinance does not target DRPI.“To be honest with you, if we had the jurisdiction, I would have liked to revisit Cherry Island. We don’t have the jurisdiction," he said. "But it applies to any landfills that come into New Castle County.”
Widener University Delaware Law School professor Thomas Reed told Delaware Public Media in September he was not persuaded by DRPI’s argument that the ordinance unlawfully targets a single business.
“That certainly is an issue you can argue to a very favorably inclined court— that this is simply designed to put them out of business,” he said. “But … because the ordinance is general in character, and if anyone else wants to get into the landfill business— subject to the ordinance in New Castle County— they’ll be bound just as much as these people are.”
Reed said the argument could hold water if the company could find a “smoking gun," such as “backroom chatter” or emails proving a county official wanted to use the legislation specifically to shut down DRPI. “Not so much bad science as evil intent."
County Executive Matt Meyer told Delaware Public Media in June he supported the county legislation, at the same time saying he saw DRPI’s proposed expansion as an environmental justice issue.
“I’m absolutely opposed to enabling dumpers to increase the height of their dumping ground, particularly when that waste is coming from neighboring states from outside our county, and particularly when the dumping ground is right basically smack in the middle of a residential area,” he said at the time.
A spokesperson for the office of County Executive Matt Meyer said Friday that County government could not comment on the litigation.
