JOSEPH W. BOOTH & MARGARET A. BOOTH Appellants,
SECRETARY M. SHAWN GARVIN & DELAWARE DEPARTMENT OF NATURAL RESOURCES & ENVIRONMENTAL CONTROL, Appellees.
Submitted: December 17, 2018
from the Decision of the Environmental Appeals Board:
Christopher M. Coggins, Esquire, Coggins Law, LLC,
Wilmington, Delaware, Attorney for the Appellants.
F. Phillips, Deputy Attorney General, Department of Justice,
New Castle, Delaware, Attorney for the Appellees.
MEMORANDUM OPINION AND ORDER
Jeffrey J Clark Judge.
Joseph W. Booth and Margaret Booth (the "Booths")
appeal an Environmental Appeals Board ("EAB")
decision. The EAB dismissed the Booths' appeal of (1) an
oral statement made by the Secretary of the Department of
Natural Resources and Environmental Control
("DNREC"), and (2) a letter written by a separate
DNREC official. For the reasons that follow, neither
constituted agency action that could be appealed.
Furthermore, if the oral statement of the Secretary had
constituted agency action, their appeal of that statement
would not have been timely. Accordingly, the Booths'
appeal in the case was properly dismissed and the EAB's
decision must be AFFIRMED.
procedural history in this case is complex and unusual.
Namely, the Booths filed two separate EAB appeals regarding
the same substantive issues. Both appeals involved
DNREC's January 8, 2014, notice of the Booths'
alleged liability for environmental contamination at the
Thro-Kleen Dry Cleaners Site (hereinafter the
"Site") in Georgetown. The Booths purchased the
Site and at some point DNREC discovered hazardous substances,
terachlorethene ("PCE") and trichloroethened
("TCE"), at the Site. Thereafter, the Booths and
DNREC negotiated potential remedial action. The give and take
included DNREC urging the Booths to participate in
DNREC's Voluntary Cleanup Program, and the Booths'
attempt to convince DNREC that they were innocent landowners.
first alleged agency action that the Booths appealed was an
oral statement allegedly made by DNREC Secretary Shawn Garvin
(the "Secretary") on May 17, 2017. The only
reference in the record regarding the content of that
statement was provided in the Booths' letter of appeal to
the EAB. There, they alleged that after discussing their
differences at a meeting, the Secretary stated that "he
stands by DNREC employees' position and it is his
next item the Booths allege was agency action was a May 23,
2017, letter from a DNREC program administrator, Timothy
Ratsep ("Mr. Ratsep"). In that letter, Mr. Ratsep
wrote in response to a letter from the Booths' former
DNREC has a fundamental disagreement . . . Apart from the
innocent landowner concern, it seems that there is a
misunderstanding of DNREC's position that you, as the
owners of the property and the operators of the cleaning
business . . . are strictly liable . . . DNREC again urges
you to give serious consideration to providing the
information necessary to complete an ability to pay
determination relating to the potential cleanup costs.
12, 2017, while pro se, the Booths filed their first
appeal to the EAB. In their letter of appeal, they referenced
only the Secretary's May 17, 2017, oral statement. DNREC
then moved to dismiss the EAB appeal since it was not filed
within twenty days of the alleged agency action as required
by statute. The Booths then amended their appeal
To date, we have never received an official written position
on the Innocent Landowner Defense from Secretary Garvin. He
stated verbally in the May 17th meeting [that]
"he stands by DNREC employees' position and it is
his official decision." We interpret the written
position from Mr. Ratsep dated May 23, 2017, as Secretary
Garvin's official decision . . . [A]ny person may appeal
to the Environmental Appeals Board within 20 days after
receipt of the Secretary's decision or publication of the
agreement of the parties, no EAB hearing followed for some
time. In the interim, on October 31, 2017, the Secretary
issued a written order finding, inter alia, that the
Booths were not innocent landowners and were liable pursuant
to 7 Del. C. § 9105(a)(1) for releases of
hazardous substances on the Site. The Booths timely appealed
that order to the EAB.
months later, on July 2, 2018, the EAB issued its decision
regarding the first appeal. In its decision, the EAB granted
DNREC's motion to dismiss the Booth's appeal of the
Secretary's oral statement and Mr. Ratsep's letter
because the appeal was untimely. Nevertheless, the EAB's
order recognized that all substantive arguments regarding the
Site survived to be later addressed in the remaining appeal
of the Secretary's October 2017 written order. The Booths
then timely appealed the dismissal of their first EAB appeal
to this Court.
the appeal of the first EAB matter pending in this Court, the
EAB scheduled a November 27, 2018, hearing regarding the
Secretary's October 2017 written order. The planned scope
of that EAB hearing included all substantive issues regarding
the Site and any defenses to liability. For reasons that are
difficult to understand, the Booths appeared at that hearing
but then abruptly withdrew their second appeal. Counsel for
the Booths indicated at oral argument in Superior Court that
the Booths did not believe they would receive a fair hearing
because DNREC and the EAB were structurally
intertwined. The Booths did not explain why those
assumed circumstances would be any different were the EAB to
consider their first appeal.
Arguments of the Parties
Booths alternatively argue that the Secretary's oral
statement on May 17, 2017, or Mr. Ratsep's letter dated
May 23, 2017, constituted agency action by the Secretary that
triggered their right to appeal. They argue primarily that
Mr. Ratsep's letter triggered the accrual of the appeal
deadline. They initially argued in their briefing that the
Court should reverse the EAB's decision and remand the
case for a hearing so they could defend the case on its
argument, the Booths explained that they withdrew their EAB
appeal of the Secretary's written order because the EAB
and DNREC were inextricably intertwined. This, they allege,
makes the EAB an unfair venue to hear the appeal. For that
reason, the Booths then sought to argue the substantive
merits of their case in this Court.
counters that the issue before the Court is procedural only.
Specifically, it argues that neither the Secretary's oral
statement nor Mr. Ratsep's letter constituted agency
action that triggered the right (or need) to appeal.
Moreover, DREC argues that even if the Secretary's oral
statement could have been appealed to the EAB, the issue
narrows to one of untimeliness. Finally, DNREC emphasizes
that the Booths withdrew the only appeal that could have
provided their requested relief.
Standard of Review
Court's standard of review of an EAB decision is limited
to a substantial evidence review and a review for legal
error. Since the issues before the Court are
(1) the timeliness of an appeal, and (2) whether upon
uncontroverted facts the oral statement and Mr. Ratsep's