IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
DIAMOND TOWN TIRE PROS & ) AUTO CARE, LLC and NUCAR ) MIDDLETOWN, LLC, ) ) Appellants, ) ) v. ) C.A. No. N22A-05-010 PRW ) DELAWARE DEPARTMENT OF ) NATURAL RESOURCES AND ) ENVIRONMENTAL CONTROL, ) ) Appellee. )
Submitted: May 26, 2023 Decided: June 9, 2023
ORDER
Upon Diamond Town Tire Pros & Auto Care, LLC and Nucar Middletown, LLC’s Appeal of the Final Order and Decision of the Environmental Appeals Board, AFFIRMED.
(1) Appellants Diamond Town Tire Pros & Auto Care and NUCAR
Middletown, LLC (collectively, “Diamond Town”) have taken an appeal from an
Environmental Appeals Board (“EAB”) decision and final order.
(2) Before arguing the substance of that appeal, Appellee Delaware
Department of Natural Resources and Environmental Control (“DNREC”) moved
to dismiss it arguing this Court lacked jurisdiction because the appeal was untimely. The Court denied DNREC’s motion.1
(3) In this appeal, Diamond Town argues the EAB’s decision wasn’t
supported by substantial evidence because DNREC’s investigator failed to conduct
a proper investigation.2 Specifically, Diamond Town says the purported fact that
a mix of tires—some scrap, some not—were stored together in a pile does not
perforce render it a scrap-tire pile.3 Diamond Town insists that by failing to
quantify the amount and failing to sort the type of tires in the pile, the DNREC
investigator failed to conduct an adequate investigation—thus improperly
conflating used tires with scrap tires.4
(4) According to DNREC, its investigation sufficed, the EAB’s decision
was supported by substantial evidence, and the Court should affirm that decision.5
(5) In May 2019, a DNREC investigator inspected Diamond Town’s
1 Diamond Town Tire Pros & Auto Care, LLC v. Del. Dep’t of Natural Resources and Env’t Control, 2023 WL 2985256, at *4 (Del. Super. Ct. Apr. 17, 2023). 2 Opening Br. at 6 (D.I. 12) (“The uncontroverted evidence was that DNREC never determined the actual number of used tires that Diamond Town had set aside in its tire pile to be removed by its used tire hauler that actually met the definition of a scrap tire.” (emphasis added)). 3 Reply Br. at 3 (D.I. 25) A used tire that is prudent or practical for vehicular use is not a scrap tire merely because it is stored in a tire pile with tires that do meet the definition of a scrap tire. A used tire that is prudent or practical for vehicular use is not a scrap tire merely because the facility that is storing the tires does not sell used tires to the public. A used tire that is prudent or practical for vehicular use is not a scrap tire merely because the owner or operator of the facility does not barrel stack the tires. 4 Id. at 6. 5 Answering Br. at 9-12 (D.I. 23).
-2- facility where she found a large tire pile.6 Because Diamond Town’s manager
identified it as the business’s scrap-tire pile, because the tires were stored outside,
and because the tires were thrown together in a pile, the investigator concluded the
pile was indeed a scrap-tire pile.7 After counting more than 100 tires in the pile,
the investigator determined that Diamond Town was a scrap-tire facility and issued
a notice of violation for failure to comply with the appropriate regulations
governing scrap-tire facilities.8 Three months later, a DNREC investigator
returned “and again observed over 100 scrap tires.”9 Then more than a year after
the second inspection, a DNREC investigator returned for another follow-up
inspection.10 At the third inspection, the investigator observed, again, a similar tire
pile with over 100 scrap tires.11 And because Diamond Town had failed to comply
with the regulations governing scrap-tire facilities, DNREC issued the Order of
the Secretary that is the subject of the EAB’s decision and the present appeal.12
6 Id. at 2. 7 Id. at 2-5. 8 Id. 9 Id. at 2. 10 Id. at 2-3. 11 Id. at 2-5. Before DNREC conducted the third inspection, Diamond Town confirmed in its 2019 Scrap Tire Annual Report “that there were 100 scrap tires then on the property.” Id. at 3 (citing Hr’g Tr. at 36). 12 Id.
-3- (6) On March 25, 2022, the EAB issued its Final Order and Decision.13
That decision concluded Diamond Town’s “tire pile constitute[d] a scrap tire
facility as that term is used in the regulations.”14 EAB heard testimony from two
witnesses—the DNREC investigator and Diamond Town owner James Barnes—
and examined the evidence provided by the parties.15
(7) The EAB decided 6-0 to affirm the Secretary’s Order.16 But, even
upon doing so, it admonished both parties.
(8) The EAB admonished DNREC for the “presumptuous and seemingly
casual way in which DNREC made its calculations regarding the number of scrap
tires in the pile at the time of its inspections.”17
(9) The EAB admonished Diamond Town for its failure to “physically
separate scrap tires from used tires” and its failure to keep proper records.18
(10) The EAB concluded that, given their mandate, it could not conclude
13 D.I. 1, Ex. A (“Decision and Final Order”). 14 Id. at 9. 15 Id. at 4-8. 16 Id. at 9. 17 Id. (“[T]he Board would like to make it clear that it was uneasy with the presumptuous and seemingly casual way in which DNREC made its calculations regarding the number of scrap tires in the pile at the time of its inspections. In light of the fact that the number of ‘scrap’ tires in a pile is determinative of whether the pile will be judged a scrap tire facility the Board encourages DNREC to explore alternative methods for making that crucial finding.”). 18 Id. (“The Board believes that better record keeping practices and physical separation of the scrap tires and used tires on the part of Diamond could have established the missing evidence to support its theory of the case.”).
-4- “the Secretary’s decision [was] not supported by the evidence on the record before
the Board.”19 And therefore affirmed the decision of the DNREC Secretary.20
(11) When reviewing decisions of the EAB, this Court must decide
“whether the decision is supported by substantial evidence and is free from legal
error.”21 Substantial evidence, in this respect, means evidence “which a reasonable
mind might accept as adequate to support a conclusion.”22 “It is more than a ‘mere
scintilla but less than a preponderance of the evidence.’”23
(12) Reviewing the EAB’s Decision, and the parties’ briefs, the Court finds
there was substantial evidence on which the EAB could affirm the Secretary’s
decision.
(13) DNREC’s investigator issued Diamond Town a notice of violation
because of its tire pile, which the investigator determined constituted a scrap-tire
19 Id. (alteration added) (quoting DEL. CODE ANN. tit. 7, § 6008(b) (2021)). 20 Id. 21 Keep Our Wells Clean v. State of Del. Dep’t of Nat. Res. & Env’t Control, 243 A.3d 441, 446 (Del. 2020) (citing State of Del. Dep’t of Nat. Res. & Env’t Control v. McGinnis Auto & Mobile Home Salvage, 225 A.3d 1251, 1254 (Del. 2020)); DEL. CODE. ANN. tit. 29, § 10142(d) (2021) (“The Court, when factual determinations are at issue, shall take due account of the experience and specialized competence of the agency and of the purposes of the basic law under which the agency has acted. The Court’s review, in the absence of actual fraud, shall be limited to a determination of whether the agency’s decision was supported by substantial evidence on the record before the agency.”). 22 Keep Our Wells Clean, 243 A.3d at 446 (quoting Prunckun v. Del. Dep’t of Health & Soc.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
DIAMOND TOWN TIRE PROS & ) AUTO CARE, LLC and NUCAR ) MIDDLETOWN, LLC, ) ) Appellants, ) ) v. ) C.A. No. N22A-05-010 PRW ) DELAWARE DEPARTMENT OF ) NATURAL RESOURCES AND ) ENVIRONMENTAL CONTROL, ) ) Appellee. )
Submitted: May 26, 2023 Decided: June 9, 2023
ORDER
Upon Diamond Town Tire Pros & Auto Care, LLC and Nucar Middletown, LLC’s Appeal of the Final Order and Decision of the Environmental Appeals Board, AFFIRMED.
(1) Appellants Diamond Town Tire Pros & Auto Care and NUCAR
Middletown, LLC (collectively, “Diamond Town”) have taken an appeal from an
Environmental Appeals Board (“EAB”) decision and final order.
(2) Before arguing the substance of that appeal, Appellee Delaware
Department of Natural Resources and Environmental Control (“DNREC”) moved
to dismiss it arguing this Court lacked jurisdiction because the appeal was untimely. The Court denied DNREC’s motion.1
(3) In this appeal, Diamond Town argues the EAB’s decision wasn’t
supported by substantial evidence because DNREC’s investigator failed to conduct
a proper investigation.2 Specifically, Diamond Town says the purported fact that
a mix of tires—some scrap, some not—were stored together in a pile does not
perforce render it a scrap-tire pile.3 Diamond Town insists that by failing to
quantify the amount and failing to sort the type of tires in the pile, the DNREC
investigator failed to conduct an adequate investigation—thus improperly
conflating used tires with scrap tires.4
(4) According to DNREC, its investigation sufficed, the EAB’s decision
was supported by substantial evidence, and the Court should affirm that decision.5
(5) In May 2019, a DNREC investigator inspected Diamond Town’s
1 Diamond Town Tire Pros & Auto Care, LLC v. Del. Dep’t of Natural Resources and Env’t Control, 2023 WL 2985256, at *4 (Del. Super. Ct. Apr. 17, 2023). 2 Opening Br. at 6 (D.I. 12) (“The uncontroverted evidence was that DNREC never determined the actual number of used tires that Diamond Town had set aside in its tire pile to be removed by its used tire hauler that actually met the definition of a scrap tire.” (emphasis added)). 3 Reply Br. at 3 (D.I. 25) A used tire that is prudent or practical for vehicular use is not a scrap tire merely because it is stored in a tire pile with tires that do meet the definition of a scrap tire. A used tire that is prudent or practical for vehicular use is not a scrap tire merely because the facility that is storing the tires does not sell used tires to the public. A used tire that is prudent or practical for vehicular use is not a scrap tire merely because the owner or operator of the facility does not barrel stack the tires. 4 Id. at 6. 5 Answering Br. at 9-12 (D.I. 23).
-2- facility where she found a large tire pile.6 Because Diamond Town’s manager
identified it as the business’s scrap-tire pile, because the tires were stored outside,
and because the tires were thrown together in a pile, the investigator concluded the
pile was indeed a scrap-tire pile.7 After counting more than 100 tires in the pile,
the investigator determined that Diamond Town was a scrap-tire facility and issued
a notice of violation for failure to comply with the appropriate regulations
governing scrap-tire facilities.8 Three months later, a DNREC investigator
returned “and again observed over 100 scrap tires.”9 Then more than a year after
the second inspection, a DNREC investigator returned for another follow-up
inspection.10 At the third inspection, the investigator observed, again, a similar tire
pile with over 100 scrap tires.11 And because Diamond Town had failed to comply
with the regulations governing scrap-tire facilities, DNREC issued the Order of
the Secretary that is the subject of the EAB’s decision and the present appeal.12
6 Id. at 2. 7 Id. at 2-5. 8 Id. 9 Id. at 2. 10 Id. at 2-3. 11 Id. at 2-5. Before DNREC conducted the third inspection, Diamond Town confirmed in its 2019 Scrap Tire Annual Report “that there were 100 scrap tires then on the property.” Id. at 3 (citing Hr’g Tr. at 36). 12 Id.
-3- (6) On March 25, 2022, the EAB issued its Final Order and Decision.13
That decision concluded Diamond Town’s “tire pile constitute[d] a scrap tire
facility as that term is used in the regulations.”14 EAB heard testimony from two
witnesses—the DNREC investigator and Diamond Town owner James Barnes—
and examined the evidence provided by the parties.15
(7) The EAB decided 6-0 to affirm the Secretary’s Order.16 But, even
upon doing so, it admonished both parties.
(8) The EAB admonished DNREC for the “presumptuous and seemingly
casual way in which DNREC made its calculations regarding the number of scrap
tires in the pile at the time of its inspections.”17
(9) The EAB admonished Diamond Town for its failure to “physically
separate scrap tires from used tires” and its failure to keep proper records.18
(10) The EAB concluded that, given their mandate, it could not conclude
13 D.I. 1, Ex. A (“Decision and Final Order”). 14 Id. at 9. 15 Id. at 4-8. 16 Id. at 9. 17 Id. (“[T]he Board would like to make it clear that it was uneasy with the presumptuous and seemingly casual way in which DNREC made its calculations regarding the number of scrap tires in the pile at the time of its inspections. In light of the fact that the number of ‘scrap’ tires in a pile is determinative of whether the pile will be judged a scrap tire facility the Board encourages DNREC to explore alternative methods for making that crucial finding.”). 18 Id. (“The Board believes that better record keeping practices and physical separation of the scrap tires and used tires on the part of Diamond could have established the missing evidence to support its theory of the case.”).
-4- “the Secretary’s decision [was] not supported by the evidence on the record before
the Board.”19 And therefore affirmed the decision of the DNREC Secretary.20
(11) When reviewing decisions of the EAB, this Court must decide
“whether the decision is supported by substantial evidence and is free from legal
error.”21 Substantial evidence, in this respect, means evidence “which a reasonable
mind might accept as adequate to support a conclusion.”22 “It is more than a ‘mere
scintilla but less than a preponderance of the evidence.’”23
(12) Reviewing the EAB’s Decision, and the parties’ briefs, the Court finds
there was substantial evidence on which the EAB could affirm the Secretary’s
decision.
(13) DNREC’s investigator issued Diamond Town a notice of violation
because of its tire pile, which the investigator determined constituted a scrap-tire
19 Id. (alteration added) (quoting DEL. CODE ANN. tit. 7, § 6008(b) (2021)). 20 Id. 21 Keep Our Wells Clean v. State of Del. Dep’t of Nat. Res. & Env’t Control, 243 A.3d 441, 446 (Del. 2020) (citing State of Del. Dep’t of Nat. Res. & Env’t Control v. McGinnis Auto & Mobile Home Salvage, 225 A.3d 1251, 1254 (Del. 2020)); DEL. CODE. ANN. tit. 29, § 10142(d) (2021) (“The Court, when factual determinations are at issue, shall take due account of the experience and specialized competence of the agency and of the purposes of the basic law under which the agency has acted. The Court’s review, in the absence of actual fraud, shall be limited to a determination of whether the agency’s decision was supported by substantial evidence on the record before the agency.”). 22 Keep Our Wells Clean, 243 A.3d at 446 (quoting Prunckun v. Del. Dep’t of Health & Soc. Servs., 201 A.3d 525, 540 (Del. 2019)). 23 Id. (quoting Powell v. OTAC, Inc., 223 A.3d 864, 870 (Del. 2019)).
-5- pile.24 More than a year later when DNREC conducted a subsequent investigation,
there was still a large tire pile present.25 Diamond Town acknowledged the notice
of violation it received but didn’t change its practices and continued to “not keep
a count of the number of tires in the [tire] pile at any given time.”26
(14) Diamond Town failed to meaningfully comply with the 2019 notice
of violation it received.27 And when it filed its 2019 scrap-tire facility report, as
instructed by DNREC, it said it “conducted no investigation at that time to
determine whether it should be considered a scrap tire facility and did not look at
the regulations.”28
(15) Given the DNREC inspector’s observations and Diamond Town’s
inability to refute those observations because of its own poor practices and record
keeping, the EAB had substantial evidence to find in favor of DNREC and affirm
the Secretary’s decision.
24 Decision and Final Order at 7 (noting at that inspection, Diamond Town’s facility manager “showed [the DNREC inspector] to what he called the scrap tire pile” and the inspector did not investigate further to determine “if any of the tires in the pile were in a usable condition especially since [the facility manager] had referred to the pile as ‘the scrap tire’ pile.’” (citing Hr’g Tr. at 50)); id. (explaining the investigator’s method of counting and/or approximating the quality of tires). 25 Id. at 8 (explaining the findings at the follow-up inspection conducted in December 2020). 26 Id. at 6 (citing Hr’g Tr. at 42). 27 See id. at 5-6. 28 Id. at 5 (citing Hr’g Tr. at 31).
-6- (16) The Court will do the same. Accordingly, the decision of the EAB is
AFFIRMED.
IT IS SO ORDERED.
__________________________ Paul R. Wallace, Judge
-7-