IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DELAWARE SOLID WASTE
AUTHORITY, ; C.A. No. K19A-05-003 WLW

Appellant,

Vv.

DELAWARE DEPARTMENT OF

NATURAL RESOURCES AND

ENVIRONMENTAL CONTROL,
Appellee.

Submitted: October 1, 2019
Decided: January 22, 2020

ORDER
Upon an Appeal from the Decision
of the Environmental Appeals Board.
Affirmed.

William J. Kassab, Esquire, Deputy Attorney General, attorney for the Appellee.

Michael W. Teichman, Esquire, Elio Battista, Jr., Esquire and Kyle F. Dunkle,
Esquire, of Parkowski Guerke & Swayze, P.A., attorneys for Appellant.

WITHAM, R.J.
DSWA v. DNREC
C.A. No. K19A-05-003 WLW
January 22, 2020

INTRODUCTION

This is an appeal filed by the Delaware Solid Waste Authority (““DSWA”)
regarding a decision of the Environmental Appeals Board (the “Board”) not to review
the Notice of Violation (“NOV”) issued by the Delaware Department of Natural
Resources & Environmental Control (‘DNREC”) to DSWA. The Board determined
that NOVs were not final decisions of the administrative agency and, therefore, were
not subject to the appellate review. For the reasons set forth below, the decision of the
Board is AFFIRMED.

FACTUAL AND PROCEDURAL BACKGROUND

1. On October 2, 2018, DNREC issued the NOV 18-SW-65 to the DSWA.'
The NOV contained allegations that DSWA had violated or was violating several
terms of its Municipal Solid Waste Landfill permit (the “Permit”) for its Sussex
County Southern Solid Management Center (SSWMC).’ DSWA then appealed the
NOV to the Board on October 18, 2018.3 DNREC filed a Motion to Dismiss the

appeal, arguing that the Board had no jurisdiction to review the NOV because it was

 

' Appellee’s Answering Brief (hereinafter “Answer. Brief”) 1. The only NOV at issue is 18-
SW-65. DSWA elected not to provide DNREC documents required by the NOV, but DNREC
concluded that the violation has been corrected and issued a letter to DSWA on December 18, 2018,
stating that the violation has been fixed to its satisfaction.

* Id.

* Id.
DSWA vy. DNREC
C.A. No. K19A-05-003 WLW
January 22, 2020

not a final decision by the administrative agency.‘ DSWA filed a Response, and the
Board had a hearing on the matter on January 22, 2019.°
2. The Board agreed with DNREC and dismissed the appeal in a written
“Decision and Final Order,” which was published on April 23, 2019.° The Board
determined that NOVs were not appealable.’ The Board concluded that “[s]imply
stated, NOVs do not substantially affect the agencies to whom they are issued.”®
DSWA filed a timely appeal from the Board’s decision to this Court on May 17,
2019.’ Both parties filed Briefs in support of their respective positions.
PARTIES’ CONTENTIONS
3. DSWA argues that NOVs constitute final agency actions that are subject to
an appeal before the Board.'° DSWA states the definitively-worded NOV represents

the consummation of the Department’s decision-making process, and it also has legal

 

* See Id. at 1-2.

° See EAB Decision and Final Order 1. Both parties mistakenly referred to the date of the
hearing as January 22, 2018 in their submissions.

° Appellant’s Opening Brief (hereinafter “App. Brief’) 2. Appellee mistakenly referred to the
date the Decision was published at April 23, 2017.

1 Td.
* EAB Decision and Final Order 6.
° Answer. Brief 2.

'° Appellant’s Opening Brief (hereinafter “App. Brief”) 3.

3
DSWA v. DNREC
C.A. No. K19A-05-003 WLW
January 22, 2020

consequences for DSWA, such as reputation harm, vulnerability to the enhanced
enforcement, and potential designation as a “chronic violator.”'’ DSWA further
argues that it meets the standing requirements because it is directly and substantially
affected by DNREC’s NOV.”

4. DNREC argues that NOVs are not final agency actions because no sufficient
legal consequences result from them, and because they do not substantially affect
agencies they are issued to.'’ DNREC also points out that the Board was right in
concluding that the opposite result would lead to a possibility that a violator can
appeal the same issue twice to the same appellate body.'* DNREC states that the
Board’s reasoning is “sound and consistent with Delaware and federal precedent on
what qualifies as final agency action.””

STANDARD OF REVIEW
5. This Court is limited in its review to “a determination of whether the

Board’s decision is supported by substantial evidence and free from legal error.”"°

 

"Td.

” See Id.

3 See Answer. Brief 7.
'4 Td. at 8.

'S Td.

‘6 Longobardi v. Unemployment Ins. Appeal Bd., 287 A.2d 690, 692 (Del. Super. 1971)
(citing Air Mod Corporation v. Newton, 215 A.2d 434 (Del.Supr.Ct.1965)).
DSWA v. DNREC
C.A. No. K19A-05-003 WLW
January 22, 2020

Substantial evidence is that “relevant evidence that a reasonable mind might accept
as adequate to support a conclusion.”'’ However, the Court reviewed questions of law
and statutory interpretation de novo.'*
DISCUSSION

6. In this case, the NOV issued to DSWA does not constitute a final decision
of the Secretary that can be appealed to the Board. Under Delaware law, “[w]henever
a final decision of the Secretary concerning any case decision, included but not
limited to any permit or enforcement action is appealed, the Board shall hold a public
hearing...”'’ The action by the Secretary also includes the action by the Secretary’s
“duly authorized designee.”” Therefore, the actions by the Administrator of DNREC
fall within the category of the Secretary’s actions. Both parties agree that no statutory
law in Delaware defines what constitutes “a final decision.””' The parties agree that

this case involves a determination of whether NOVs constitute final case decisions.”

 

'7 Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (quoting Consolo v. Federal Maritime
Commission, 383 U.S. 607, 620 (1966)).

'® Delaware Dep’t of Nat. Res. & Envtl. Control v. Sussex Cty., 34 A.3d 1087, 1090 (Del.
2011).

9-7 Del. C. § 6008(b).
207 Del. C. § 6002(48).
*! See App. Brief 12; see also Answer. Brief 10.

2 See Answer. Brief 9.
DSWA v. DNREC
C.A. No. K19A-05-003 WLW
January 22, 2020

Both parties further agree that the Supreme Court decision in Bennett should govern
the determination of finality of an administrative decision that could be appealed to
the Board.*? Delaware courts adopted the reasoning of federal case law when it comes
to the determination of what an appealable final action is.”

7. Bennett established a two-part test to determine the finality of a decision:
One - the action must represent the consummation of the agency’s decision-making
process, and two - the action must either determine rights/obligations or have legal
consequences.” In this case, it appears to the Court that NOVs fail to meet both
prongs of the Bennett test. First, NOVs are not consummations of the decision-
making process because, despite the definitive language used in them, they do not
constitute the closure of the administrative procedure, and the Department continues
to review the same violations asserted in NOVs after the issuance of the Notices.

8. Furthermore, NOVs can also be followed by the Secretary’s orders, which
do, in fact, constitute the consummation of a decision-making process. Another point
courts can consider when evaluating the finality of a decision is “whether the process

of administrative decision-making has reached a stage where judicial review will not

 

3 App. Brief 15, see Answer. Brief 7; see Bennett v. Spear, 520 U.S. 154 (1997).

4 See State, Office Mgmt. & Budget v. Pub. Emp’t Relations Bd. (PERB), 2010 WL 1732894
at *1 (Del. Super. Apr. 29, 2010).

5 Bennett, 520 U.S. at 177-78.
DSWA v. DNREC
C.A. No. K19A-05-003 WLW
January 22, 2020

disrupt the orderly process of adjudication.” In this case, it appears that the process
would be disrupted because reviewing the NOV before the Secretary issues an order
for the same violation could create confusion and a possibility of appealing the same
decision twice. As opposed to the order at issue in Sackett, for example, NOVs are
subject to further agency assessment.”’ In Sackett, as opposed to this case, the order
that the Court determined to be final was “not subject to further agency review.”

9. NOVs also do not meet the second prong of the Bennett test. In this case,
DSWA did not follow the directions provided in the NOV and was not reprimanded
in any way for that. On the contrary, DNREC later determined that, despite DSWA
non-compliance with the NOV’s directions, DSWA was no longer in violation.”
Based on that, it cannot be said that the NOV created a right or obligation.

10. Furthermore, the NOV did not create sufficient legal consequences for
DSWA. A real threat of criminal or civil penalty, for instance, is an example of legal

consequences.” In this case, however, without further action (Secretary’s order) no

 

*6 Port of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62,
71 (1970) (citing ICC v. Atlantic Coast Line R. Co., 383 U.S. 576, 602 (1966); Rochester Telephone
Corp. v. United States, 307 U.S. 125, 143 (1939)).

*” Sackett v. E.P.A., 566 U.S. 120 (2012).

*8 Sackett, 566 U.S. at 127 (2012).

2° Answer. Brief 4.

3° See Frozen Food Express v. US, 351 U.S. 40, 44 (1956).
DSWA v. DNREC
C.A. No. K19A-05-003 WLW
January 22, 2020

penalty is imposed or threatened, and DSWA’s legal regime is not changed. The
number of violations mentioned in 7 Del. C. § 7904(b) is only one of the many factors
to consider when determining whether an agency deserves the “chronic violator”
designation. Moreover, one of the factors that must be considered when the
Department takes violations into account is “whether such [alleged] violations have
been found or proven in concurrent or subsequent proceedings or public hearings.”*!
Therefore, if the violations are not proven through a further process that involves a
final decision regarding them, the existence of the allegations of such violations can
be mitigated or even nullified by this provision.

11. According to 7 Del. C. § 6005, sanctions may be imposed on violators.”
However, it appears that the violations must be the final ones, such as Secretary’s
orders, to constitute grounds for sanctions.*? Even though DNREC’s “Compliance
and Enforcement Response Guide” (“CERG”) mentions NOVs and their effect, the
guide is a policy document that does not make NOVs mandatory prerequisites for an
administrative penalty.

12. Furthermore, the guide provides that “[flailure to comply with [an] NOV
is not itself a violation of law subject to a penalty, and thus DNREC may not assess

a penalty for violation of [an] NOV independent of the violations cited within the

 

31-7 Del. C. § 7904(c)(10).
22 See 7 Del. C. § 6005.

3 See Id.
DSWA v. DNREC
C.A. No. K19A-05-003 WLW
January 22, 2020

NOV, as it may do for violating an order.”** The guide goes on to state that “[a]n
Administrative Order, however, differs from a NOV in content and significance, and
consequently, an order issued unilaterally by DNREC is subject to adjudicatory
appeal.”*° Therefore, it is apparent that NOVs and orders are treated differently when
it comes to their possible consequences.

13. Moreover, nothing in 7 Del. Admin C. § 1301, which addresses solid waste
and the issuance of permits, stands for the proposition that the existence of NOVs,
without more, will make it harder for an entity to get a permit. As to the reputation
harm, it does not constitute a sufficient /egal consequence in this case. The injury to
reputation, which resulted from the agency’s actions, does not warrant immediate
judicial review.*° Judicial review is appropriate, on the other hand, when the plaintiff
suffers direct and immediate impact from the action that is being appealed.*’
Furthermore, reputation harm is considered a collateral non-legal consequence in
other contexts.**

14. Additionally, in this case, it appears that DSWA also lacks standing to

 

* DNREC, Compliance Enforcement Response Guide 32 (Dep. 2002).
> Id.

* Texaco, Inc. v. Dep’t of Energy, 490 F. Supp. 874, 889 (Del. 1980).
*” Id. at 888.

*8 See Harvell v. Norris, 2016 WL 3890571 at *4 (N.C. Ct. App. July 19, 2016) (citing Smith
v. Smith, 549 §.E.2d 912, 914 (2001)).
DSWA v. DNREC
C.A. No. K19A-05-003 WLW
January 22, 2020

challenge the NOV. Here, the question of standing relates to the same issue discussed
above — whether the NOV constituted a final decision of the administrative agency
that substantially affected DSWA’s rights. Reading 7 Del. C. § 6008 in its entirety
helps understand that for a party to have standing to challenge an administrative
decision, a party’s interests must be substantially affected by such final decision.”
Therefore, in this case, based on the same analysis of finality, DSWA does not have
standing to challenge the NOV because non-final decisions do not affect it
substantially. Moreover, finding NOVs to be final decisions appealable to the Board
would disrupt the administrative process in place and open the doors to the possibility
of too many appeals based on different types of administrative actions agencies

engage in routinely as a part of continuous procedures.

 

CONCLUSION
For all of the foregoing reasons, the decision of the Board is AFFIRMED.
IT IS SO ORDERED.
/s/ William L. Witham, Jr.
Resident Judge
WLW/dmh

 

* See 7 Del. C. § 6008(a)-(b); see also Booth v. Garvin, 2019 WL 462486 at *3-4 (Del.
Super. Feb. 6, 2019).

10
