Opinion
Civil Action No. 98C-12-023
February 29, 2000
Walter W. Speakman, Jr., Esquire Brown, Shiels Chasanov P.O. Drawer F Dover, DE 19903
Kevin P. Maloney, Esquire Department of Justice Carvel State Office Building 820 North French Street Wilmington, DE 19801
Dear Counsel:
INTRODUCTION
This matter is before the Court on motions for partial summary judgment filed by both the City of Rehoboth Beach ("Plaintiff") and the Secretary of the Department of Natural Resources and Environmental Control and the Department of Natural Resources of Environmental Control ("Defendants"). For the reasons set forth below, Plaintiff's partial summary judgment is granted and Defendants' partial summary judgment is denied.
STATEMENT OF FACTS
On November 6, 1998, the Secretary issued order No. 98-W-0044 ("the Order") establishing a Total Maximum Daily Load("TMDL") for pollutants of concern, nitrogen and phosphorous, for the Indian River, Indian River Bay, and Rehoboth Bay. This order, which all agree is a regulation, requires that all point source discharges into Rehoboth Bay be eliminated systematically. Plaintiff has a wastewater treatment plant that is a point source discharger into the Lewes and Rehoboth Canal, which flows into Rehoboth Bay.
Plaintiff filed a timely administrative appeal of the Order with the Environmental Appeals Board ("the Board") on December 21, 1998. Plaintiff also filed an action seeking declaratory relief in regard to the Order with this Court on December 30, 1998. Plaintiff states it filed this matter before the Court as a precautionary matter. Plaintiff wanted to protect its interests in the event Defendants challenged the Board's jurisdiction to hear this appeal. Pl. Op. Br. at 5.
On March 31, 1999, Defendants filed with the Board a motion to dismiss or stay Plaintiff's appeal to it. Part of Defendants' argument in the motion to dismiss/stay was that the Board lacks jurisdiction over an appeal of Defendants' regulations. Defendants' motion also stated the Board should defer to this Court for its ruling on the issue of jurisdiction since the same issue is before the Court.
The Board issued its order on May 19, 1999, concluding that it had jurisdiction to hear this appeal pursuant to 7 Del. C. § 6008 . In addition to this, the order stated:
In 7 Del. C. § 6008, it is provided in pertinent part:
(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 the 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 100 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.
The City of Rehoboth has an identical appeal presently pending in the Superior Court. No doubt, the City of Rehoboth would likely follow the Town of Georgetown's representation and dismiss their Superior Court appeal should the Board accept jurisdiction of the appeal before it. The Board accepts jurisdiction, however, the fact presently before the Board is that the identical action with the identical issues is presently pending before the Superior Court. The Board will not entertain this appeal while an identical appeal is pending before the Court. In the interest of judicial economy and based on the authority of the Superior Court over the decisions of the Board, the Board has decided to stay the appeal until the Superior Court appeal is resolved.
On August 5, 1999, the parties stipulated to a briefing schedule regarding their partial summary judgment motions concerning the question of jurisdiction. The matter is now before the Court for decision on cross motions for summary judgment on the issue of whether the Board has jurisdiction over Plaintiff's appeal of the Order.
LEGISLATIVE HISTORY
The Board was established July 17, 1973 by Chapter 60, Title 7,Del. C. to hear appeals by any person whose interest is substantially affected by any action of the Secretary. 59 Del.Laws c. 212. In July of 1976 the Board was put under the umbrella of the Administrative Procedures Act. 60 Del. Laws c. 585
It seems that the Attorney General's office, who is representing the Defendants, has tried before to challenge the jurisdiction of the Board to hear appeals of regulations adopted by the Defendants. The first time the Attorney General's office challenged the jurisdiction of the Board they petitioned this Court for a Writ of Prohibition. This challenge was not answered by the Court but the Delaware State Legislature in 67 Del. Laws c. 377. The following clause accompanied the July 17, 1990 passage of Senate Bill No. 476, which added a new subsection (g) to 7 Del. C. 6008. The clause read as follows:
WHEREAS, the Environmental Appeals Board was created by § 7 Del. C. § 6007, Title 7, Delaware Code to hear the appeal of any person whose interest is substantially affected by any action of the Secretary of the Department of Natural Resources and Environmental Control; and
WHEREAS, since its creation, the Environmental Appeals Board has proven to be a fair, reasonable, prudent and prompt source of administrative relief which, among other things, has provided recourse for Delaware citizens who could not otherwise afford to pursue remedies in court; and
WHEREAS, the Environmental Appeals Board has been granted broad jurisdiction to hear appeals of any action by the Secretary, including the adoption of regulations; and
WHEREAS, the adoption of regulations, which have the force and effect of law, substantially impacts and affects the interests of Delaware citizens; and
WHEREAS, the Environmental Appeals Board has for many years heard and ruled on appeals of regulations adopted by the Secretary; and
WHEREAS, it has been and continues to be the intent of the Delaware General Assembly to authorize the Environmental Appeals Board to provide the valuable function of hearing appeals of regulations adopted by the Secretary; and
WHEREAS, the Delaware Attorney General's office, in a proceeding before the Environmental Appeals Board, recently challenged the Board's jurisdiction to hear appeals of regulations adopted by the Secretary; and
WHEREAS, the Environmental Appeals Board responded in the course of its ruling that it does possess such jurisdiction; and
WHEREAS, the Attorney General's Office more recently has petitioned the Superior Court for a Writ of Prohibition, thereby challenging once more the Environmental Appeals Board's jurisdiction to hear appeals of regulations adopted by the Secretary; and
WHEREAS, such petition may cause expensive and unjustifiable delays and uncertainties to Delaware citizens who are affected by the regulations; and
WHEREAS, the confirmation and clarification of the authority of the Environmental Appeals Board to act in this essential part of its legislative mandate is a matter of great importance to the citizens of this state. . . .
67 Del. Laws c. 377. On July 10, 1991, the General Assembly amended chapter 60, Title 7 of the Delaware Code by striking § 6006, 6007, 6008 and replacing them. 68 Del. Laws c. 148. This amendment created 7 Del. C. § 6008(c) , while retaining the crux of 7 Del. C. 6008(a) which allows any person whose interest is substantially affected by any action of the Secretary to appeal to the Environmental Appeals Board within 20 days after receipt of the Secretary's decision, or publication of the decision. 68 Del. Laws c. 148
In 7 Del. C. § 6008(c), it is provided in pertinent part:
(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 if it 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 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.
Defendants now argue that in 1993 the State Legislature impliedly repealed 7 Del. C. § 6008(c) with the amendment to the APA, 29 Del. C. § 10161(b) , which incorporated 29 Del. C. § 10141 . In House Bill No. 209, which covers 29 Del. C. § 10161(b), including the synopsis, there is not any mention of legislative intent to take away the authority of the Board to hear appeals such as the Order in this present action. The Synopsis provided in part:
In 29 Del. C. § 10161(b), it is provided in pertinent part:
(b) All agencies which are not listed in subsection (a) of this section shall only be subject to subchapters I and II of this chapter and §§ 10141, 10144 and 10145 of this title.
In 29 Del. C. § 10141, it is provided in pertinent part:
(a) Any person aggrieved by and claiming the unlawfulness of any regulation may bring an action in the Court for declaratory relief.
(b) No action of an agency with respect to the making or consideration of a proposed adoption, amendment or repeal of a regulation shall be subject to review until final agency action on the proposal has been taken.
A major thrust of this legislation is the fact that all state agencies are brought in under the provisions of the Administrative Procedures Act whereas before there were only 43 regulatory type agencies affected. Under the provisions of this Act each state agency will have two basic requirements to undergo before promulgating regulations. First of all they must comply with the APA and secondly they must meet the requirements of the register. At the beginning it is only anticipated that the register will publish regulations, but eventually, based on a preliminary survey conducted by the Division of Research several of the participants in the survey indicated an interest in such things as agency organization charts, agency workshops, Attorney General opinions, Boards and Commission meeting dates, calendar of legislative days, county zoning ordinances changes, government case decisions, effective dates of signed legislation, fee schedules, Governor's executive orders, hearing dates and locations, statutory references, state contracts, sunset information etc.
It is anticipated that the more information that is provided in the state Register the wider the market will become to eventually enable the Register to financially sustain itself.
In the beginning the Register will be distributed gratis to the law libraries located in each county, to all public libraries in each county, to the two state daily newspapers and the Director of the Division of Libraries. A nominal fee will be set by the Register which will approximate and reasonably reflect all costs necessary to defray the expenses of the register. The Act is to become effective January 1, 1994.
SUMMARY OF THE ARGUMENTS
Plaintiff argues in its brief that Chapter 60 of Title 7 of theDelaware Code clearly provides for the appeal of the Order to the Board. 7 Del. C. § 6008. Defendants counter in their brief that 7Del. C § 6008(c) was impliedly repealed by the revision to the Administrative Procedures Act ("APA") codified at 29 Del. C. § 10161(b). Defendants argue that because these two statutes are in irreconcilable conflict, the later statute, 29 Del. C. § 10161, must prevail.STANDARD OF REVIEW
Summary judgment may be granted only when no material issues of fact exist. Moore v. Sizemore, Del. Supr., 405 A.2d 679, 680 (1979). When cross motions for summary judgment are filed neither party's motion will be granted unless there is no genuine issue of material fact and one of the parties is entitled to judgment as a matter of law. Emmons v. Hartford Underwriters Ins. Co., Del. Supr., 697 A.2d 742 (1997). In addition, when parties file cross-motions for summary judgment, they implicitly concede that there is no genuine issue of material fact. Browning-Ferns, Inc. v. Rockford Enters., Inc., Del. Super., 642 A.2d 820 (1993). Moreover, the "Court's decision must be based only on the record presented, including all pleadings, affividavits, depositions, admissions, and answers to interrogatories, not on what evidence is `potentially possible.'" Merrill v. Crothal-American, Inc., Del. Supr., 606 A.2d 96 (1992). If however, material issues of fact exist or if the Court determines that it does not have sufficient facts before it, then summary judgment is inappropriate. Ebersole v. Lowengrub, Del. Supr., 180 A.2d 467, 470 (1962).
DISCUSSION
In 1985, the Chancery Court decided a case quite similar to the case at hand. In Siegfried v. Department of Natural Resources and Environmental Control, Del. Ch., C.A. 931, Walsh, V.C. (July 24, 1985), the Court ruled on a Declaratory Judgment Action brought to invalidate a regulation of the Department of Natural Resources and Environmental Control. The Court stated that although there was an appeal process, first to the Environmental Appeals Board, 7 Del. C. § 6008, and then to the Superior Court, 7 Del. C. § 6009, the Plaintiff eschewed the designated statutory appeal procedure and commenced this action in this Court. The Court went on to state that whatever the merit of Plaintiff's position, he had failed to air his grievance in accordance with the statutory procedure and since the Board is fully capable of deciding questions of law regarding the propriety of Department regulations, plaintiff's challenge to the legal basis for the regulation was also within its purview. The Court stated that the Board's decision was then appealable to the Superior Court under 7 Del. C. § 6009 or, because the Board is expressly subject to Delaware's Administrative Procedure Act, under 29 Del. C. § 10141. Along with this, the Court ruled the plaintiff could not circumvent the statutory remedy by bringing an action for declaratory relief in this Court. This case was decided in 1985, when the Defendants were not subject to the APA. See Formosa Plastics Corporation v. Wilson, Del. Supr., 504 A.2d 1083, 1090 (1986) (although the Board is listed as an agency subject to the APA, the Secretary and the Department clearly are not)
This is why Defendants now argue that prior to the APA's amendment subjecting Defendants to 29 Del. C. § 10161(b), judicial review of regulations was effected pursuant to 7 Del. C. § 6008(c) and that the legal effect of the passage of this amendment in 1993 was the implied repeal of 7 Del. C. § 6008(c) resulting in judicial review of Defendants' regulations now being effected only pursuant to 29 Del. C. § 10141. The Delaware Supreme Court has discussed repeals by implication and held that:
[I]t is the rule that legislation is, whenever possible, presumed to be consistent with pre-existing law. Laws are assumed to be cumulative, not destructive of other laws. Accordingly, it has long been recognized in our state that "repeals by implication are never favored, and unless it is expressly so provided, one act does not ordinarily repeal another, if both, in whole or in part, can be construed together."Hubbard v. Dunkleberger, Del. Supr., 658 A.2d 227 (1995) (quotingDupont v. Dupont, Del. Supr., 87 A.2d 394, 399 (1952)). The principle of repeal of one statute by implication is not favored unless the two provisions are irreconcilably inconsistent, repugnant to each other or lead to absurd, unjust, or mischievous results. David S.W. v. State, Del. Supr., 509 A.2d 1100, 1102 (1986).
As stated above, Defendants argue that because these two statutes are in irreconcilable conflict there is a repeal and the later statute 29 Del. C. § 10161(b), displaces the earlier statute, 7 Del. C. § 6008(c). When the General Assembly enacts a later statute in an area covered by a prior statute, it is assumed that they have in mind that prior statute and therefore statutes on the same subject must be construed together so that effect is given to every provision unless there is an irreconcilable conflict between the statutes, in which case the later supersedes the earlier. Green v. County Council of Sussex County, Del. Ch., 415 A.2d 481, 484 (1980), aff'd, Del. Supr., 447 A.2d 1179 (1982). As shown in the legislative history, it is obvious the legislature wanted the Board involved in the process of review. Since there is no conflict between the two statutes and there is not legislative intent to repeal the earlier statute, the Court finds the two statutes can be read harmoniously as appealing parties do have final recourse to this Court. Thus, the Board has jurisdiction to hear this appeal and parties have the right to appeal the Board's decision to this Court.
CONCLUSION
The Court concludes that the Environmental Appeals Board has jurisdiction over this appeal. Plaintiff's partial summary judgment motion is granted and Defendants' partial summary judgment motion is denied.
IT IS SO ORDERED
T. Henley Graves