     IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                IN AND FOR NEW CASTLE COUNTY
                                 )
SIERRA CLUB and                  )
DELAWARE AUDUBON,                )
                                 )
          Appellants Below,      )
     v.                          )
                                 )   No. N14A-05-002 ALR
DELAWARE DEPARTMENT OF           )   No. N13A-09-001 ALR
NATURAL RESOURCES AND            )
ENVIRONMENTAL CONTROL and        )
DELAWARE CITY REFINING           )
COMPANY, LLC,                    )
                                 )
          Appellees Below.       )

       Upon Appellant’s Appeal from the Environmental Appeals Board
                               AFFIRMED
                           Submitted: February 12, 2015
                             Decided: March 31, 2015

   Upon Appellant’s Appeal from the Coastal Zone Industrial Control Board
               AFFIRMED ON ALTERNATE GROUNDS
                           Submitted: February 12, 2015
                             Decided: March 31, 2015




Kenneth T. Kristl, Esquire, Attorney for Appellants Sierra Club and Delaware
Audubon.

Max B. Walton, Esquire, Matthew F. Boyer, Esquire, Attorneys for Appellees
Delaware Department of Natural Resources and Environmental Control.

Bart E. Cassidy, Esquire, Katherine L. Vaccaro, Esquire, Joseph C. Schoell,
Esquire, Attorneys for Appellees Delaware City Refining Company, LLC.

Rocanelli, J.
      I.     Background

      These are companion appeals to the Superior Court by the Sierra Club and

Delaware Audubon (“Appellants”). Appellants challenge the decisions of the

Environmental Appeals Board and the Coastal Zone Industrial Control Board to

dismiss administrative appeals of an Order of the Secretary of the Delaware

Department of Natural Resources and Environmental Control that approved a

permit amendment sought by the Delaware City Refinery Company, LLC.

   A. Delaware City Refining Co.’s Air Permit Amendment Application to DNREC

      Delaware City Refining Company, LLC (“Refinery”) owns and operates a

petroleum refinery located in Delaware City. On or about March 21, 2013, the

Refinery submitted an Air Permit Amendment Application (“Amendment

Application”)   to the    Delaware Department of      Natural   Resources and

Environmental Control (“DNREC”). The Amendment Application requested an

amendment to the Refinery’s Air Pollution Control Permit for its Marine Vapor

Recovery System (“Vapor Recovery System”). The Vapor Recovery System is

used to capture escaping vapors that are released when the Refinery transfers

petroleum products onto marine barges. The Refinery’s Vapor Recovery System

operates under an air permit that addresses the air control requirements imposed

under federal and state pollution control law.




                                          1
          The Refinery’s previous air permit authorized the Vapor Recovery System

to collect emissions from the loading of gasoline and gasoline components. The

Refinery’s Amendment Application requested authorization to expand the Vapor

Recovery System in order to accommodate emissions generated from the loading

of crude oil onto marine vessels at the Refinery’s docking facility.            The

Amendment Application also requested changes to the Vapor Recovery System’s

emission standards and operational limitations.

      B. Public Hearing; Public Comment Period; Hearing Officer’s Report

          On April 8, 2013, DNREC published notice of the Refinery’s Amendment

Application in The News Journal and Delaware State News inviting public

comment.          On May 8, 2013, DNREC held a public hearing regarding the

Refinery’s Amendment Application (“Public Hearing”). Robert Haynes, Esquire,

was assigned as the hearing officer (“Hearing Officer”) to preside over the Public

Hearing and prepare a report of recommendations for DNREC’s Secretary. The

transcript of the Public Hearing was submitted to the Court as part of the appellate

record. Public comment was heard. In addition to raising general environmental

concerns during the Public Hearing, a representative of the Sierra Club suggested

that the Refinery’s requested amendment would violate the Coastal Zone Act

(“CZA”). 1 At the Public Hearing, the Hearing Officer noted that his report and the


1
    7 Del. C. § 7001 et. seq.
                                         2
Secretary’s decision would include consideration of concerns regarding

compliance with the CZA.

       At the conclusion of the Public Hearing, the State of Delaware Department

of Justice (“DOJ”) requested that the public comment period remain open for 14

days. During this time period, the DOJ was to continue its internal analysis and

make a submission to the Hearing Officer for consideration. The Hearing Officer

granted the DOJ’s request for an additional period for public comment. The

Hearing Officer stated at the conclusion of the Public Hearing that the public

comment period for written comments would be extended to May 22. Thereafter,

written comments were submitted.

       The Hearing Officer issued a report on May 29, 2013 (“Report”). The

Report noted that the Refinery’s Amendment Application was reviewed under

Delaware Regulations Governing the Control of Air Pollution, codified at

Subdivision 1100 of Title 7 of the Delaware Administrative Code. With respect to

the CZA, the Report noted that the Refinery did not seek a CZA permit or request a

status decision in the Amendment Application.2 Accordingly, the Hearing Officer

found that the CZA was not implicated by the Refinery’s proposal.



2
  See 7 Del. C. § 7005 (outlining the administration of the CZA); and 7 Del. C. § 7007 (limiting
the Coastal Zone Board’s jurisdiction to decisions made under § 7005). See also 7 Del. Admin.
C. § 101-7.0 (establishing procedure to request a status decision from the Coastal Zone Board to
determine if an activity requires a CZA permit); and 7 Del. Admin. C. § 101-8.0 (establishing
procedure to submit CZA permit applications with the Coastal Zone Board).
                                               3
C. Secretary’s Order Approving the Refinery’s Air Permit Amendment Application

      Following a review of the Report, then-DNREC Secretary Colin O’Mara

(“Secretary”) approved the Refinery’s Amendment Application by Secretary’s

Order No. 2013-A-0020 dated May 31, 2013 (“Secretary’s Order”).                     The

Secretary’s Order noted that the purpose of the Refinery’s Amendment “is to allow

crude oil to be loaded onto vessels at [the Refinery’s] Delaware River docking

facility.” The Secretary’s Order addressed concerns regarding both air quality and

CZA violations.

D. Appeals of the Secretary’s Order by the Sierra Club and Delaware Audubon

      On June 14, 2013, the Sierra Club and Delaware Audubon (“Appellants”)

filed companion appeals (“Dual Appeals”) of the Secretary’s Order to both the

Coastal Zone Industrial Control Board (“Coastal Zone Board”) and the

Environmental Appeals Board (“EAB”). Appellants asserted that the Coastal

Zone Board was “the appropriate forum to determine the applicability of the CZA

to a particular activity,” but explained that Dual Appeals were filed as a

“prophylactic measure to assure that the CZA issues are decided on their merits (as

opposed to being decided on the failure to file in the correct appellate forum).”

      In its appeal filed with the EAB, Appellants stated: “[t]he Appellants are

challenging only the portions of the [Secretary’s] Order in which the Secretary


                                          4
ruled on the status of the crude oil transfer operation under the Coastal Zone

Act[.]” In the Application to Appeal filed with the Coastal Zone Board, the

Appellants stated: “the [Secretary’s] Order constitutes a decision concerning the

applicability of the CZA[.]”

E. Motions to Dismiss Dual Appeals on the Basis of Subject Matter Jurisdiction
and Failure to Establish Legal Standing

      DNREC and the Refinery filed motions to dismiss with the EAB for lack of

subject matter jurisdiction. DNREC and the Refinery’s motions asserted that

principles of statutory construction and applicable case precedent prevented the

EAB from considering appeals that solely raise CZA issues.

      Similarly, DNREC and the Refinery filed motions to dismiss with the

Coastal Zone Board for lack of subject matter jurisdiction. The Refinery also filed

a motion to dismiss with the Coastal Zone Board for failure to establish legal

standing, which DNREC then joined. With respect to subject matter jurisdiction,

DNREC and the Refinery’s motions asserted that the Secretary’s Order was not a

decision regarding a CZA permit application or status determination.3

Accordingly, DNREC and the Refinery contended that the Coastal Zone Board

was not the proper venue for an appeal of the Secretary’s Order. 4 With respect to

legal standing, the Refinery asserted that the alleged harm suffered by Appellants

3
 See supra note 2.
4
 See 7 Del. C. § 7007 (“The [Coastal Zone Board] shall have the power to hear appeals from
decisions of the Secretary of [DNREC] made under § 7005 of this title.”).
                                            5
was too generalized, and therefore Appellants failed to satisfy the elements for

legal standing under 7 Del. C. § 7007(b), as set forth by the Delaware Supreme

Court in Oceanport Industries, Inc. v. Wilmington Stevedores, Inc. 5

F. EAB Proceedings and Opinion

         The EAB held a public hearing and heard oral argument.              Upon

consideration of the motions to dismiss, the public hearing, and oral argument, the

EAB issued a written opinion dismissing the appeal for lack of subject matter

jurisdiction. The EAB concluded that the EAB’s jurisdictional authority did not

extend beyond actions arising under Chapter 60 of Title 7 of the Delaware Code.

Specifically, the EAB reasoned that the issues raised by Appellants pertained

solely to matters arising under the CZA, codified at Chapter 70 of Title 7 of the

Delaware Code. Pursuant to Chapter 60 of Title 7 of the Delaware Code and

Oceanport, the EAB determined that the Coastal Zone Board serves as the

appropriate forum for appeals arising under the CZA. Accordingly, the EAB

granted DNREC and the Refinery’s motions to dismiss the appeal for lack of

subject matter jurisdiction.

G. Coastal Zone Board Proceedings and Opinion

         The Coastal Zone Board held a public hearing and heard oral argument.

Upon consideration of the motions to dismiss, the public hearing, and oral


5
    636 A.2d 892, 900 (Del. 1994).
                                         6
argument, the Coastal Zone Board issued a written opinion dismissing the appeal

for failure to establish legal standing. The Coastal Zone Board concluded that

Appellants failed to satisfy the elements for standing under 7 Del. C. § 7007(b) as

articulated by the Supreme Court in Oceanport. The Coastal Zone Board also

grounded its decision on “the hearsay nature of the evidence presented.”6

Accordingly, the Coastal Zone Board granted DNREC and the Refinery’s motion

to dismiss for failure to establish legal standing.

H. Appeals to Superior Court

       On May 7, 2014, Appellants filed appeals with this Court, challenging the

decisions of the EAB and the Coastal Zone Board’s to dismiss the Dual Appeals.

DNREC and the Refinery filed motions in support of the EAB and Coastal Zone

Board’s decisions to dismiss the Dual Appeals.

       II.    Standard of Review for Administrative Appeals

       In reviewing an appeal from an administrative board decision, the Court

must determine whether the agency’s ruling is supported by substantial evidence




6
  DNREC and the Refinery stipulated to the admission of affidavits from concerned citizens into
evidence prior to the hearing. DNREC and the Refinery did not stipulate to the truth of the
matters asserted in the affidavits or that the affidavits had any probative value on the factual
issues necessary to a finding of standing. The Coastal Zone Board considered the affidavits to
constitute hearsay evidence. The Coastal Zone Board found that the lack of any factual evidence
apart from hearsay to support Appellants’ argument provided an independent legal basis for the
decision to grant the Refinery’s motions to dismiss. As noted below, the Court will not address
standing or whether the affidavits were appropriately considered.
                                               7
and free from legal error. 7 Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” 8 It is more

than a scintilla but less than a preponderance of the evidence. 9 Only when there is

no satisfactory proof to support a factual finding of the Board may the Court

overturn the agency’s finding. 10

       III.   Standard of Review for Subject Matter Jurisdiction

       The Court maintains plenary review over issues regarding application or

construction of law.11 Accordingly, the Court reviews the issue of subject matter

jurisdiction de novo, 12 and examines whether legal precepts were correctly

formulated and applied. 13 When subject matter jurisdiction is at issue, the plaintiff

bears the burden of establishing such jurisdiction.14 A challenge to subject matter




7
   Andreason v. Royal Pest Control, 72 A.3d 115, 125 (Del. 2013) (citing Stoltz Mgmt. Co. v.
Consumer Affairs Bd., 616 A.2d 1205, 1208 (Del. 1992)).
8
  Streett v. State, 669 A.2d 9, 11 (Del. 1995) (quoting Olney v. Cooch, 425 A.2d 610, 614 (Del.
1981)).
9
  Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988).
10
   Noel-Liszkiewicz v. La-Z-Boy, 68 A.3d 188, 191 (Del. 2013).
11
   Stoltz Mgmt. Co., 616 A.2d at 1208.
12
   Sanders v. Sanders, 570 A.2d 1189, 1190 (Del. 1990).
13
    Candlewood Timber Grp., LLC v. Pan Am. Energy, LLC, 859 A.2d 989, 997 (Del. 2004);
Sanders, 570 A.2d at 1190.
14
   Charlotte Broad., LLC v. Davis Broad. of Atlanta, LLC, 2013 WL 1405509, at *3 (Del. Ch.
Apr. 2, 2013) (citing Christiana Town Ctr., LLC v. New Castle Cnty., 2003 WL 21314499, at *3
(Del. Ch. June 6, 2003)).
                                              8
jurisdiction cannot be waived,15 nor can subject matter jurisdiction be conferred by

agreement.16

       The right to an administrative appeal is created by statute. 17 As the Supreme

Court noted in Oceanport, “no party has a right to appeal unless the statute

governing the matter has conferred a right to do so.”18 Oceanport specifically

addresses the statutory scheme developed by the Delaware General Assembly for

the public’s participation in environmental matters. The Supreme Court states:

       The General Assembly provided a role for the participation of the general
       public in the protection of natural resources by establishing a minimal
       standing requirement for involvement in hearings during the permit
       process.19

       In the case before this Court, the proceedings below included a public

hearing and public comment period. The Secretary considered environmental

concerns raised by members of the public before issuing the Secretary’s Order.

       The Court rejects Appellants’ position that either the Coastal Zone Board or

the EAB “should” have jurisdiction to consider Appellants’ appeal. Whether there

should be a right to an administrative appeal is not an appropriate issue for judicial

15
   See Appriva S’holder Litig. Co. v. EV3, Inc., 937 A.2d 1275, 1284 (Del. 2007); Plummer v.
Sherman, 861 A.2d 1238, 1243 (Del. 2004).
16
    See Butler v. Grant, 714 A.2d 747, 749-50 (Del. 1998); El Paso Natural Gas Co. v.
TransAmerican Natural Gas Co., 669 A.2d 36, 39 (Del. 1995).
17
   See New Castle Cnty. v. Chrysler Corp., 681 A.2d 1077, 1088 (Del. Super. 1995) (“In all
cases, civil and criminal appeal procedures are the creatures of the constitution or statutes within
the jurisdiction. . . .” (quoting State ex. rel. Caulk v. Nichols, 267 A.2d 610, 612 (Del. Super.
1971), aff’d, 281 A.2d 24 (Del. 1971))).
18
   Oceanport Industries Inc., 636 A.2d at 900.
19
   Id.
                                                 9
consideration. Rather, creation of such rights is strictly a legislative function. The

law does not require that at least one administrative board have jurisdiction over

Appellants’ challenge to the Secretary’s Order. The judicial function is limited to

applying the statute objectively and not revising it. 20

      IV.    The EAB Does Not Have Subject Matter Jurisdiction to Consider
             the Appeal

      Appellants assert that the EAB erred as a matter of law in holding that the

EAB lacks subject matter jurisdiction to consider the appeal. The Court finds that

the EAB correctly formulated and applied the proper legal precepts in determining

that the EAB lacks subject matter jurisdiction to consider issues that are raised

solely under the CZA.

       Appeals to the EAB are governed by 7 Del. C. § 6008. Any person whose

interest is substantially affected by any action of the Secretary may appeal to the

EAB within 20 days after receipt of the Secretary's decision or publication of the

decision.21 Any person or persons aggrieved by any decision of the EAB may

appeal to the Superior Court in and for the county in which the activity in question

is wholly or principally located.22 On appeal, the Court may affirm, reverse or

modify the EAB’s decision.23

20
   In re Adoption of Swanson, 623 A.2d 1095, 1097 (Del. 1993); In re Panousseris’ Will, 151
A.2d 518, 523 (Del. 1959).
21
   7 Del. C. § 6008(a).
22
   7 Del. C. § 6009(a).
23
   7 Del. C. § 6009(b).
                                            10
       On June 13, 2013, Appellants filed a Statement of Appeal with the EAB.

Appellants’ Statement of Appeal states, in relevant part, that “[t]he Appellants are

challenging only the portions of the [Secretary’s] Order in which the Secretary

ruled on the status of the crude oil transfer under the Coastal Zone Act.”

Accordingly, Appellants strictly limit their appeal to issues arising under the CZA.

       The Court finds that the EAB properly relied upon the Supreme Court’s

decision in Oceanport as applicable and binding legal precedent. In Oceanport,

the Supreme Court reviewed a decision by Superior Court to overturn the issuance

of environmental permits and remand the case back to the EAB. 24 On remand, the

Superior Court directed the EAB to review the status of the project at issue under

the CZA. 25 The Supreme Court found that the Superior Court committed legal

error by directing the EAB to make determinations on issues arising under the

CZA. 26 The Supreme Court noted that “[a]lthough Oceanport received a CZA

status decision from the Secretary, Delaware law does not compel concurrent

compliance with regard to Chapter 60 permits.” 27

       In determining that the EAB lacks subject matter jurisdiction to consider the

appeal, the EAB properly formulated and applied Oceanport as the appropriate

legal precept. The Court finds that Oceanport is on-point and controlling in this

24
   Oceanport Industries Inc., 636 A.2d at 899.
25
   Id.
26
   Id. at 907.
27
   Id.
                                                 11
appeal.     The Oceanport decision makes it clear that the EAB does not have

authority to consider appeals that center upon CZA objections. Accordingly, the

EAB’s decision is free from legal error and must be affirmed.

       V.      The Coastal Zone Board Does Not Have Subject Matter
               Jurisdiction to Consider the Appeal

       Appellants assert that the Coastal Zone Board erred as a matter of law in

dismissing the appeal. On June 13, 2013, Appellants filed an Application to

Appeal from a Coastal Zone Act Decision with the Coastal Zone Board. Appeals

to the Coastal Zone Board are governed by 7 Del. C. § 7007. The Coastal Zone

Board’s jurisdictional authority is limited to appeals of the Secretary’s decisions

made under 7 Del. C. § 7005.28 Secretary decisions under § 7005 are matters that

involve Coastal Zone permit applications, 29 or requests for status decisions to

determine if a proposed activity requires a Coastal Zone permit. 30 On appeal, the

Court may affirm, reverse or modify a decision of the Coastal Zone Board made

under § 7007.31

       As part of its decision-making process, DNREC considered whether the

Refinery’s Amendment Application implicated the CZA and whether the

Refinery’s proposal required a CZA permit. The Secretary found:


28
   7 Del. C. § 7007(a).
29
   7 Del. C. § 7005(a); 7 Del. Admin. C. § 101-8.0.
30
   7 Del. C. § 7005(a); 7 Del. Admin. C. § 101-7.0.
31
   7 Del. C. § 7008.
                                               12
          [B]ased on this record, that the proposed use to transfer crude to ships is not
          a change of use under the [CZA]. The [Hearing Officer’s] Report finds that
          it is not the type of change that requires a [Coastal Zone] permit since the
          use pre-existed the [CZA], the docking facility footprint is unchanged, the
          only construction is pollution controls, the use does not expand industrial
          development within the Coastal Zone, and the transfer is allowable. 32

Although the Secretary found that “the proposed activity [by the Refinery] is

allowable and does not require a [CZA] permit,” the Secretary also stated that “the

[Refinery] should request a Coastal Zone Status Decision if future physical or

operational changes are intended or implemented.” 33 In making findings under the

CZA, the Secretary referenced 7 Del. Admin. C. 101-5.9 and 5-16.

          If the Secretary had considered an application for a CZA permit or issued a

Coastal Zone Status Decision, there would be no question regarding the subject

matter jurisdiction of the Coastal Zone Board. However, that is not the procedural

posture of the matter before the Court. Rather, the Secretary found that the activity

proposed in the Refinery’s Amendment Application did not implicate the CZA.

The Secretary issued an air permit, and not a CZA permit or a Coastal Zone Status

Decision.

          Appellants contend that the Secretary’s decision to not require a CZA permit

or Coastal Zone Status Decision is itself within the subject matter jurisdiction of

the Coastal Zone Board.          The Court disagrees.     The Secretary approved the


32
     Secretary’s Order, 5.
33
     Secretary’s Order, 7.
                                            13
Refinery’s Amendment Application for the construction and expansion of

emissions controls. Subject matter jurisdiction of the Coastal Zone Board cannot

be predicated upon the Secretary’s conclusion that this proposed activity does not

require a CZA permit or Coastal Zone Status Decision. The Coastal Zone Board

properly relied upon statutory authority in finding that the Secretary’s Order did

not implicate a CZA decision within the jurisdiction of the Coastal Zone Board’s

review.

       The Coastal Zone Board lacks subject matter jurisdiction to consider an

appeal of the Secretary’s decision regarding matters outside of 7 Del. C. § 7005.

Accordingly, the dismissal of the appeal must be affirmed, albeit on the alternate

grounds that the Coastal Zone Board lacks subject matter jurisdiction.

       VI.     Whether Appellants Had Standing Before The Coastal Zone
               Board Need Not Be Considered

       The Coastal Zone Board found that Appellants did not have legal standing to

challenge the Secretary’s Order.              However, the question of subject matter

jurisdiction is a threshold question. 34 This Court sits in limited appellate review of

the findings of the Coastal Zone Board.35 Because the Court concludes that the

Coastal Zone Board does not have subject matter jurisdiction over the appeal, any

34
   See Super. Ct. Civ. R. 12(h)(3) (“Whenever it appears by suggestion of the parties or otherwise
that the Court lacks jurisdiction of the subject matter, the Court shall dismiss the action.”); Ford
v. Pep Boys, 1989 WL 16987, at *1 (Del. Super. Feb. 21, 1989).
35
    See 7 Del. C. § 7008. See also Delstar Indus., Inc. v. Del. Dep’t of Labor Div. of
Unemployment Ins. Appeals Bd., 1997 WL 27109, at *6 (Del. Super. Jan. 8, 1997).
                                                14
legal conclusions regarding the issue of standing need not be considered by the

Court.

         VII.   Conclusion

         Neither the EAB nor the Coastal Zone Board had subject matter jurisdiction

to consider the specific appeals presented by Sierra Club and Delaware Audubon.

The EAB properly concluded that it does not have subject matter jurisdiction to

consider the appeal. Accordingly, the dismissal of the appeal by the EAB is

affirmed for the reasons stated herein. The Coastal Zone Board does not have

subject matter jurisdiction to consider the appeal. Accordingly, the dismissal of

the appeal by the Coastal Zone Board is affirmed on alternative grounds for the

reasons stated herein.

         NOW, THEREFORE, on this 31st day of March 2015, the dismissal of

the appeal by the Environmental Appeals Board is hereby AFFIRMED and

the dismissal of the appeal by the Coastal Zone Industrial Control Board is

hereby AFFIRMED on alternate grounds.

          IT IS SO ORDERED.



                                 Andrea L. Rocanelli
                                 _____________________________________
                                 The Honorable Andrea L. Rocanelli



                                         15
