CHAPTER 148

FORMERLY

SENATE BILL NO. 195

AS AMENDED BY SENATE AMENDMENT NOS. 1 AND 2

AN ACT TO AMEND CHAPTER 60, TITLE 7 OF THE DELAWARE CODE, ENVIRONMENTAL APPEALS BOARD.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 60, Title 7, of the Delaware Code by striking §6006, §6007, §6009 and by adding thereto new sections to read as follows:

"§6006. Public Hearings.

Any public hearing held by the Secretary concerning any regulation or plan, permit application, alleged violation or variance request shall be conducted as follows:

(1) For any hearing on an application for a permit or an alleged violation or variance request, notification shall be served upon the applicant or alleged violator as summonses are served or by registered or certified mail not less than 20 days before the time of said hearing. Not less than 20 days’ notice shall also be published in a newspaper of general circulation in the county in which the activity is proposed or the alleged violation has occurred and in a daily newspaper or general circulation throughout the State.

(1) For a hearing on a regulation or plan proposed for adoption, notification shall be published in a newspaper of general circulation in each county and in a newspaper of general circulation in the State. Such notification shall include (1) a brief description of the regulation or plan, (ii) time and place of hearing and (iii) time and place where copies of the proposed regulation may be obtained and a copy of the plan is available for public scrutiny. Such notice shall also be sent to any
persons who have requested such notification from the Department providing the name and mailing address.

(1) The permit applicant or the alleged violator or party requesting a variance may appear personally or by counsel at the hearing and produce any competent evidence in his/her behalf. The Secretary or his/her duly authorized designee may administer oaths, examine witnesses and issue, in the name of the department, notices of hearings or subpoenas requiring the testimony of witnesses and production of books, records or other documents relevant to any matter involved in such hearing; and subpoena shall also be issued at the request of the applicant or alleged violator or party requesting a variance. In case of contumacy or refusal to obey a notice of hearing or subpoena under this section, the Superior Court in the county in which the hearing is held shall have jurisdiction upon application of the Secretary, to issue an order requiring such person to appear and testify or produce evidence as the case may require.

(1) A record from which a verbatim transcript can be prepared shall be made of all hearings and shall, also with the exhibits and other documents introduced by the Secretary or other party, constitute the record. The expense of preparing any transcript shall be borne by the person requesting it. The Secretary shall make findings of fact based on the record. The Secretary shall then enter an order that will best further the purpose of this chapter, and the order shall include reasons. The Secretary shall promptly give written notice to the persons affected by such order.

(1) The Secretary may establish a fee schedule for applications and hearings, and may collect from the applicant or from a violator finally adjudged guilty, the necessary expenses of the Department for conducting the hearing, or a reasonable fee for processing an application, or both. Any fees collected under this chapter are hereby appropriated to the Department to carry out the purposes of this chapter. The Secretary shall report through the annual budget process the receipt, proposed use and disbursement of these funds. §6007. Establishment of Environmental Appeals Board.

(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 Chairman shall be appointed by the Governor and serve at his 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 pre-hearing 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 present of the Board 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 Chairman who shall note such interest on the record of the hearing.

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

(a) The Environmental Appeals Board shall adopt such rules and
regulations as are necessary to provide procedures to implement the terms of sections 6007, 6008 and 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, Title 29 of this Code.

(a) 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.

§6008. Appeals to Board.

(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, Title 29 of this Code. 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, Title 29 of this Code. 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.

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

(a) 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.

(a) 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.

(a) 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 the provisions of §6008(b) and §6008(c) of this Title.

(b) 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 Section 6008 and 29 al. C. Chapter 101 do not apply, and the Board shall give advance notice of the hearing only to the extent reasonably possible.

§6009. Appeal From the Board’s Decision

(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."

§6007. Establishment of Environmental Appeals Board.

(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 Chairman shall be appointed by the Governor and serve at his 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 pre-hearing 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 present of the Board 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 Chairman who shall note such interest on the record of the hearing.

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

(a) The Environmental Appeals Board shall adopt such rules and
regulations as are necessary to provide procedures to implement the terms of sections 6007, 6008 and 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, Title 29 of this Code.

(a) 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.

§6008. Appeals to Board.

(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, Title 29 of this Code. 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, Title 29 of this Code. 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 ts 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.

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

(a) 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.

(a) 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.

(a) 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 the provisions of §6008(b) and §6008(c) of this Title.

(a) 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 Section 6008 and 29 De1. C. Chapter 101 do not apply, and the Board shall give advance notice of the hearing only to the extent reasonably possible.

§6009. Appeal From the Board’s Decision

(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 to which the activity in question is wholly or principally located by filing a petition, duly verified, setting forth that such decision is illegal, to whole or to 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."

Approved July 10, 1991