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State-of-Delaware-Environmental-Appeals-Board

State of Delaware Environmental Appeals Board (EAB)

Welcome to the State of Delaware's Environmental Appeals Board (EAB) website. The EAB was created by DE7, § 6007, to hear appeals of decisions made by the Secretary of the Department of Natural Resources and Environmental Control. The EAB consists of seven Delaware residents, appointed by the Governor, with the advice and consent of the Senate. The EAB chairman shall be appointed by and serve at the pleasure of the Governor, with each of Delaware's three counties represented by two EAB members also appointed by the Governor. Statutes 6007, 6008 and 6009 of Delaware Administrative Code regarding the EAB can be found below, along with current EAB members and their terms.

(a) There is hereby created an Environmental Appeals Board which shall consist of 7 Delaware residents, appointed by the Governor with the advice and consent of the Senate. The Chairperson shall be appointed by the Governor and serve at the Governor's pleasure. Each county shall be represented by 2 members. Registered members of either major political party shall not exceed the other major political party by more than 1. The term of each member appointed shall be 3 years. Vacancies in Board membership shall be filled by the Governor for the remainder of the unexpired term.

(b) The Board is a quasi-judicial review board which is constituted in order to hear appeals of decisions of the Secretary. The Board or its designee may issue subpoenas by certified mail for witnesses or evidence, administer oaths to witnesses and conduct prehearing conferences for the simplification of issues by consent, for the disposal of procedural requests or disputes and to regulate and expedite the course of the hearing.

(c) A simple majority of the Board shall constitute a quorum. A simple majority of those members of the Board present shall be required to override the decision of the Secretary. The Board shall schedule, but not necessarily conduct, a hearing within 30 days following the receipt of the appeal. In any event, the Board shall conduct, but not necessarily complete, the hearing within 180 days following the receipt of the appeal unless the parties agree otherwise. The Board may verbally announce the decision at the conclusion of the hearing. A written decision shall be mailed to the parties by certified mail within 90 days after the completion of the hearing. If the Board fails to conduct the hearing or to issue the written opinion as required, the decision of the Secretary shall be a final decision for the purposes of appeal.

(d) Any member of the Board with a personal or private financial interest in the outcome of an appeal before the Board shall disqualify himself or herself from any consideration of that matter and shall inform the Chairperson who shall note such interest on the record of the hearing.

(e) Each Board member shall be compensated for such reasonable expenses as travel and meals for each meeting and hearing attended.

(f) The Environmental Appeals Board shall adopt such rules and regulations as are necessary to provide procedures to implement the terms of §§ 6007-6009 of this title, which shall apply to appeals to the Environmental Appeals Board. Prior to adopting any such rules and regulations, the Board shall designate a day, time and place for a public hearing on such proposed rules or for any amendments to existing or proposed rules and regulations. The Board shall give 20 days' notice of such hearing by publication in a newspaper of general circulation in the State and shall make copies of such proposed regulations available to the public upon request. The public hearing on such regulations shall be consistent with the provisions of Chapter 101 of Title 29.

(g) In any appeal to the Board there shall be required a reasonable fee, as established by the General Assembly, to cover such costs as are incurred during the appeal. The fees charged by the Environmental Appeals Board shall be deposited in a special account in the name of the Environmental Appeals Board and shall be used solely for the costs and expenses of that Board in holding its hearings and proceedings.

(a) Any person whose interest is substantially affected by any action of the Secretary may appeal to the Environmental Appeals Board within 20 days after receipt of the Secretary's decision or publication of the decision. The Board shall conduct a public hearing for all appeals in accordance with Chapter 101 of Title 29. Deliberations of the Board may be conducted in executive session. Each member who votes shall indicate the nature of his or her vote in the written decision.

(b) Whenever a final decision of the Secretary concerning any case decision, including but not limited to any permit or enforcement action is appealed, the Board shall hold a public hearing in accordance with Chapter 101 of Title 29. The record before the Board shall include the entire record before the Secretary. All parties to the appeal may appear personally or by counsel at the hearing and may produce any competent evidence in their behalf. The Board may exclude any evidence which is plainly irrelevant, immaterial, insubstantial, cumulative or unduly repetitive, and may limit unduly repetitive proof, rebuttal and cross-examination. The burden of proof is upon the appellant to show that the Secretary's decision is not supported by the evidence on the record before the Board. The Board may affirm, reverse or remand with instructions any appeal of a case decision of the Secretary.

(c) Appeals of regulations shall be on the record before the Secretary. The Board may hear new evidence if it is relevant to or clarifies those issues in the record before the Secretary. The Board may exclude any new evidence which is plainly irrelevant, immaterial, insubstantial, cumulative or unduly repetitive. Regulations will be presumed valid, and the burden will be upon the appellant to show that the regulations are arbitrary and capricious, or adopted without a reasonable basis in the record. The Board shall take due account of the Secretary's experience and specialized competence and of the purposes of this chapter in making its determination. The board may affirm, reverse or remand any appeal of regulations promulgated by the Secretary.

(d) The decision of the Board shall be signed by all members who were present at the hearing.

(e) There shall be no appeal of a decision by the Secretary to deny a permit on any matter involving state-owned land including subaqueous lands, except an appeal shall lie on the sole ground that the decision was discriminatory in that the applicant, whose circumstances are like and similar to those of other applicants, was not afforded like and similar treatment.

(f) No appeal shall operate to stay automatically any action of the Secretary, but upon application, and for good cause, the Secretary or the Court of Chancery may stay the action pending disposition of the appeal.

(g) At any time after the appeal to the Board, the parties may, by stipulation, proceed directly to Superior Court, in which case the Court may affirm, reverse or remand the Secretary's decision based on the record before the Secretary and the Board and whatever other evidence the parties may submit by stipulation. The standard of review for such an appeal shall be governed by subsections (b) and (c) of this section.

(h) In those circumstances in which the Board concludes that an immediate and expedited review of a decision of the Secretary is appropriate or necessary, the Board may hold a public hearing on the appeal at the earliest possible time and issue a decision on such appeal. In such a case, the notice requirements of this section and Chapter 101 of Title 29 do not apply, and the Board shall give advance notice of the hearing only to the extent reasonably possible.

(a) Any person or persons, jointly or severally, or any taxpayer, or any officer, department, board or bureau of the State, aggrieved by any decision of the Board, may appeal to the Superior Court in and for the county in which the activity in question is wholly or principally located by filing a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Any such appeal shall be perfected within 30 days of the receipt of the written opinion of the Board.

(b) The Court may affirm, reverse or modify the Board's decision. The Board's findings of fact shall not be set aside unless the Court determines that the records contain no substantial evidence that would reasonably support the findings. If the Court finds that additional evidence should be taken, the Court may remand the case to the Board for completion of the record.

(c) No appeal shall operate to stay automatically any action of the Secretary, but upon application, and for good cause, the Board or the Court of Chancery may stay the action pending disposition of the appeal.

State of Delaware Environmental Appeals Board

Chair:
  
Nancy J. Shevock, Kent County (Term: At the pleasure of the Governor)
Members:
   Dean E. Holden, Kent County (Term: January 2015 - January 2018)
   Michael A. Horsey, Sussex County (Term: January 2015 - January 2018)
   Sebastian A. LaRocca, New Castle County (Term: June 2012 - June 2019)
   Guy Marcozzi, New Castle County (Term: June 2015 - June 2017)
   Gordon Wood, Sussex County (Term: April 2014 - April 2017)
   Robert Mulrooney, New Castle County (Term: June 2016 - June 2017)

Counsel: Julie Donoghue, Deputy Attorney General, Delaware Department of Justice, 302-577-8348.

Contact:
Environmental Appeals Board administrative assistant
Lisa Johannsen, 302-739-9038. 

 
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