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Home / Fulltext Opinions / Supreme Court of Virginia / BROWNING-FERRIS INDUSTRIES OF SOUTH ATLANTIC, INC. v. RESIDENTS INVOLVED IN SAVING THE ENVIRONMENT, INC., et al. (59890)

BROWNING-FERRIS INDUSTRIES OF SOUTH ATLANTIC, INC. v. RESIDENTS INVOLVED IN SAVING THE ENVIRONMENT, INC., et al. (59890)


BROWNING-FERRIS INDUSTRIES OF
SOUTH ATLANTIC, INC.

v.

RESIDENTS INVOLVED IN SAVING
THE ENVIRONMENT, INC., et al.


September 12, 1997
Record No. 961426
Record No. 961462

Browning-Ferris Industries
of South Atlantic, Inc.

v.

Residents Involved in Saving
the Environment, Inc., et al.

 

Commonwealth of Virginia Department
of Environmental Quality, et al.

v.

Residents Involved in Saving
the Environment, Inc., et al.

OPINION BY JUSTICE BARBARA MILANO KEENAN
FROM THE COURT OF APPEALS OF VIRGINIA

Present: Carrico, C.J., Compton, Stephenson,[1] Hassell,
and
Keenan, JJ., and Poff and Whiting, Senior Justices


The primary issue in this appeal is whether Code ? 10.1-1408.1(D)
requires the Director of the Department of Environmental Quality
(the Director), before issuing a permit for a new solid waste
management facility, to make an explicit determination that the
proposed facility poses "no substantial present or potential
danger to human health or the environment."

The facts in this appeal are not in dispute. In September
1990, Browning-Ferris Industries of South Atlantic, Inc. (BFI)
filed a notice of intent with the Department of Environmental
Quality (the Department), initiating an application for the
construction and operation of a solid waste management facility
in King and Queen County. BFI also filed a certification from the
Board of Supervisors of King and Queen County that the proposed
location and operation of the facility complied with all
applicable ordinances.[2]

In February 1991, BFI submitted, as part of its permit
application, information concerning the suitability of the site
for the proposed use and the "siting criteria" required
by the Virginia Solid Waste Management Regulations, 9 VAC
20-80-10 to -790. After the Department approved this part of
BFI’s application, BFI submitted further information addressing
the design, construction, and operation of the proposed facility.

The Department’s staff made several revisions to BFI’s
application. The staff then determined that the revised
application complied with the Solid Waste Management Regulations
and developed a draft permit which was presented for public
hearing and comment. At the conclusion of the hearing and the
two-week comment period, the staff evaluated the public comments
on the proposed facility, revised the draft permit, and
recommended that the Director approve the permit. The Director
then issued a final permit to BFI for the construction,
operation, and maintenance of the solid waste management
facility.

Residents Involved in Saving the Environment, Inc., an
organization of persons residing or owning property near the
proposed landfill site, and others (collectively, the Residents),
appealed the issuance of the permit to the circuit court,
alleging that the Department acted unlawfully in issuing the
permit because the Director failed to make an explicit
determination under Code ? 10.1-1408.1(D)
that the proposed facility does not pose a substantial present or
potential danger to human health or the environment.

The Residents contended, among other things, that the permit
was invalid because the Director failed to make the determination
required under Code ? 10.1-1408.1(D).
The Director conceded that he did not make an explicit
determination to this effect in the agency record.

The Department moved to dismiss the appeal because the
Residents had not named BFI as a party in the notice of appeal.
The trial court denied the motion based on its determination that
BFI was not a "party" within the meaning of Part 2A of
the Rules of this Court, but granted BFI leave to intervene in
the proceedings.

After conducting a hearing on the merits of the appeal, the
trial court ruled that Code ? 10.1-1408.1(D)
does not require the Director to conduct an independent
investigation and make any explicit findings before issuing a
permit for a solid waste management facility. The trial court
noted that the Residents did not allege the Department had failed
to comply with any other statute or regulation governing the
permit process. Thus, on its examination of the record, the trial
court concluded that the Department had complied with applicable
law and affirmed the Department’s decision to issue the permit.

The Residents appealed the trial court’s judgment to the Court
of Appeals, which upheld the trial courts denial of the Department’s
motion to dismiss on the ground that BFI was not a
"party," as that term is defined and used in Part 2A of
the Rules of this Court. Residents Involved in Saving the
Environment, Inc. v. Dep’t of Envtl. Quality
, 22 Va. App.
532, 538, 471 S.E.2d 796, 800 (1996). The Court further held that
BFI was not a "necessary party" to the appeal under the
Administrative Process Act (APA), Code ?? 9-6.14:1 to -.25:3.
Id. at 539, 471 S.E.2d at 800.

However, the Court of Appeals reversed the trial court’s
ruling that the Director had complied with Code ? 10.1-1408.1(D),
holding that the statute requires the Director to make an
"explicit determination" that the proposed facility
does not pose a significant present or future health or
environmental risk. Id. at 545, 471 S.E.2d at 803. The
Court remanded the case to the trial court with instructions to
remand the proceeding to the Department for the Director to
consider the existing record and make the required determination.
The Department and BFI both appealed from the Court of Appeals’
judgment, and we consolidated the cases in this appeal.

The Department first argues that a party who challenges the
issuance of a permit is required to join the permit holder as a
party to the appeal. Thus, the Department contends that the
Residents’ appeal to the circuit court should have been dismissed
because they failed to name BFI as a party to the appeal.

We agree that BFI was a necessary party to the Residents’
appeal from the Department’s ruling, because that ruling
conferred specific rights on BFI which could be defeated or
diminished by the Residents’ appeal. See Asch v.
Friends of the Community of the Mt. Vernon Yacht Club
, 251
Va. 89, 90-91, 465 S.E.2d 817, 818 (1996); 1 Frank E. Cooper, State
Administrative Law
325 (1965). However, we take no action on
the merits of the circuit court’s denial of the motion to
dismiss, because BFI’s intervention in the appeal rendered the
issue moot. See Commonwealth v. Allstate Bonding Co.,
246 Va. 189, 190 n.1, 435 S.E.2d 396, 397 n.1 (1993); Hallmark
Personnel Agency v. Jones
, 207 Va. 968, 971, 154 S.E.2d 5, 7
(1967). Therefore, we will vacate the part of the Court of
Appeals’ judgment addressing this issue.

We next consider the issue whether Code ? 10.1-1408.1(D)
requires the Director, before issuing a permit for a new solid
waste management facility, to make an explicit determination that
the proposed facility does not pose a substantial present or
potential danger to human health or the environment.[3] None
of the parties contends that Code ? 10.1-1408.1(D) is
ambiguous. However, the Department and BFI assign the statutory
language a different meaning than the interpretation urged by the
Residents.

The Department and BFI argue that an explicit determination is
not required by Code ? 10.1-1408.1(D),
that the Director made an implicit determination pursuant to the
statute when he issued the permit, and that the Director’s
decision is supported by the agency record. The Department and
BFI further assert that, if the legislature had intended the
Director to make an explicit determination of this nature, the
legislature would have included such a requirement in the
statute, as it has done in other APA provisions.

In response, the Residents assert that Code ? 10.1-1408.1(D)
requires the Director to make such an explicit determination. The
Residents contend that the Director’s failure to make that
explicit determination invalidates his issuance of the permit. We
agree with the Residents.

Under the Virginia Waste Management Act (the Act), Code ?? 10.1-1400 to -1457,
the Director of the Department is responsible for determining
whether a proposal for a new solid waste management facility
complies with the Act’s provisions. Code ?? 10.1-1183, -1185,
-1408.1(D); Concerned Taxpayers of Brunswick County v. County
of Brunswick
, 249 Va. 320, 328, 455 S.E.2d 712, 716 (1995).
An appeal from the Director’s decision to issue a permit is
governed by the APA which allows the reviewing court to consider,
among other things, the issue whether the decision was made in
compliance with statutory authority. See Code ? 9-6.14:17(ii). The
reviewing court may set the agency action aside, even if it is
supported by substantial evidence, if the court’s review
discloses that the agency failed to comply with a substantive
statutory directive. See Environmental Defense Fund,
Inc. v. Virginia State Water Control Bd.
, 15 Va. App. 271,
278, 422 S.E.2d 608, 612 (1992).

Since the issue before us is purely one of law, containing no
underlying factual issues, we do not apply a presumption of
official regularity or take account of the experience and
specialized competence of the administrative agency. See Virginia
ABC Comm’n v. York Street Inn, Inc.
, 220 Va. 310, 313, 257
S.E.2d 851, 853 (1979). These considerations apply to the review
of mixed questions of law and fact, and to the review of purely
factual issues. See Code ? 9?6.14:17(ii); York
Street Inn, Inc.
, 220 Va. at 313, 257 S.E.2d at 853.

In construing Code ? 10.1-1408.1(D),
we look first to the language of the statute to determine whether
the language is clear and unambiguous. If the language is clear
and unambiguous, we will assign the statute its plain meaning. Abbott
v. Willey
, 253 Va. 88, 91, 479 S.E.2d 528, 530 (1997); Wall
v. Fairfax County Sch. Bd.
, 252 Va. 156, 159, 475 S.E.2d 803,
805 (1996); Loudoun County Dep’t. of Social Services v. Etzold,
245 Va. 80, 85, 425 S.E.2d 800, 802 (1993).

Code ? 10.1-1408.1(D)
provides, in relevant part, that

[n]o permit for a new solid waste management facility
shall be issued until the Director has determined, after
investigation and evaluation of comments by the local
government, that the proposed facility poses no substantial
present or potential danger to human health or the
environment.

We hold that this language is clear and unambiguous, and
requires the Director, before issuing a permit for a new solid
waste management facility, to make an explicit determination that
the proposed facility poses no substantial present or potential
danger to human health or the environment. Id.

This requirement is part of the statutory scheme established
by the General Assembly to protect the Commonwealth’s
environment, thereby promoting the health and well-being of her
citizens. See Code ? 10.1-1183.
As a substantive safeguard which completes the permit review
process, the Director’s determination constitutes a crucial
element of this statutory scheme. Therefore, we reject the
argument effectively advanced by the Department and BFI that we
should assume, rather than require proof of, the Director’s
compliance with Code ? 10.1-1408.1(D).

The Director’s determination must appear on the face of the
agency record. Unlike other statutory provisions such as Code ? 10.1-1408.1(E), which
requires the Director, among other things, to issue "written
findings" after reviewing the environmental compliance
record of permittees, Code ? 10.1-1408.1(D)
does not mandate that the Directors determination be reduced
to writing. Thus, it may be preserved as part of the DEQ record
in a recorded or written format.

The Director’s determination must be made with a degree of
particularity that demonstrates a substantive consideration of
the statutory factors. A conclusional recitation of the statutory
language or a statement that the Director complied with the
statute is insufficient to satisfy this statutory mandate. The
analysis which the Director employs in considering the statutory
factors is a matter submitted to his discretion and expertise
under the statutory scheme.

Finally, we disagree with BFI’s assertion that the Director’s
failure to make an explicit determination in this case was
harmless error under Code ? 9-6.14:17(iii).
That provision subjects the failure to comply with required procedures
to a harmless error analysis. Here, however, the statutory
compliance issue involves a substantive provision which is a
prerequisite to the issuance of a permit. Thus, the Director’s
action is not subject to harmless error review. See Code ? 9-6.14:17(ii).

For these reasons, we will affirm in part, and vacate in part,
the judgment of the Court of Appeals and remand the case to the
trial court with instructions to remand the matter to the
Department for the Director to consider the existing record and
make the required statutory determination before issuing a new
permit in this case.

Affirmed in part,
vacated in part,
and remanded.

 

 

 

FOOTNOTES:

[1] Justice Stephenson participated
in the hearing and decision of this case prior to the effective
date of his retirement on July 1, 1997.

[2] Code ? 10.1-1408.1(B)(1) requires
that an application for a sanitary landfill permit contain a
certification from the local governing body where the proposed
facility is to be built that the location and operation of the
proposed facility are consistent with all applicable ordinances.

[3]
As a preliminary matter, the Department asserts that this issue
is procedurally barred because the Residents failed to raise the
issue before the circuit court. We disagree and conclude that the
issue was encompassed within the Residents= allegation that the
Director failed to comply with the express statutory requirements
concerning his duty to investigate and evaluate whether the
facility poses any substantial present or future danger to human
health or the environment.

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