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Booth v. Garvin

Superior Court of Delaware, Sussex

February 6, 2019

JOSEPH W. BOOTH & MARGARET A. BOOTH Appellants,
v.
SECRETARY M. SHAWN GARVIN & DELAWARE DEPARTMENT OF NATURAL RESOURCES & ENVIRONMENTAL CONTROL, Appellees.

          Submitted: December 17, 2018

          Appeal from the Decision of the Environmental Appeals Board: AFFIRMED

          Christopher M. Coggins, Esquire, Coggins Law, LLC, Wilmington, Delaware, Attorney for the Appellants.

          Robert F. Phillips, Deputy Attorney General, Department of Justice, New Castle, Delaware, Attorney for the Appellees.

          MEMORANDUM OPINION AND ORDER

          Jeffrey J Clark Judge.

         Appellant's 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.

         I. Procedural History

         The 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.

         The 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 official decision."

         The 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 attorney:

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.

         On June 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.[1] The Booths then amended their appeal as follows:

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 decision.[2]

         By 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.

         Nine 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.

         With 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.[3] The Booths did not explain why those assumed circumstances would be any different were the EAB to consider their first appeal.

         II. Arguments of the Parties

         The 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 merits.

         At oral 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.

         DNREC 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.

         III. Standard of Review

         The Court's standard of review of an EAB decision is limited to a substantial evidence review and a review for legal error.[4] 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 letter ...


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