Present: Carrico, C.J., Lacy, Hassell, Keenan, and Koontz,
JJ., Poff and Whiting, S.JJ.
AEGIS WASTE SOLUTIONS, INC.
v. Record No. 001350
CONCERNED TAXPAYERS OF
BRUNSWICK COUNTY, ET AL.
OPINION BY
CHIEF JUSTICE HARRY L. CARRICO
April 20, 2001
DEPARTMENT OF ENVIRONMENTAL
QUALITY, ET AL.
v. Record No. 001363
CONCERNED TAXPAYERS OF
BRUNSWICK COUNTY, ET AL.
FROM THE COURT OF APPEALS OF VIRGINIA
These appeals stem from a case governed by the
provisions of the Administrative Process Act, Code §§ 9-
6.14:1 through –6.14:25 (the APA). In the case, the
Virginia Department of Environmental Quality (DEQ) awarded
AEGIS Waste Solutions, Inc. (AEGIS) a permit to construct
and operate a landfill facility in Brunswick County. DEQ
later awarded AEGIS two amendments to the permit.
Concerned Taxpayers of Brunswick County (Concerned
Taxpayers), an unincorporated association, and eight of its
individual members who own property adjacent to or nearby
the landfill (the Property Owners) 1 appealed DEQ's award of
the permit and the amendments to the Circuit Court of
Brunswick County pursuant to Code § 9-6.14:16, part of the
APA. 2
The circuit court affirmed the awards. Concerned
Taxpayers and the Property Owners then appealed to the
Court of Appeals of Virginia. The Court of Appeals
reversed the judgment of the circuit court and declared the
permit and the amendments void. Concerned Taxpayers of
Brunswick County v. Department of Envtl. Quality, 31 Va.
App. 788, 805, 525 S.E.2d 628, 636 (2000). We awarded
AEGIS and DEQ separate appeals and consolidated them for
consideration. When appropriate, we will refer to AEGIS
and DEQ collectively as the Proponents and to Concerned
Taxpayers and the Property owners as the Opponents.
Code § 10.1-1408.1(B)(1), part of the Virginia Waste
Management Act, Code §§ 10.1-1400 through –1457, provides
that “[n]o application for a new solid waste management
1
The Property Owners are J. M. Moseley, Jr., M. K.
Moseley, Jerry L. Marston, H. Bruce Brandon, Julia Reavis
Blandford, James F. Hite, Charles M. Bland, and Sidney E.
Brown. All are here as appellees.
2
One of DEQ’s assignments of error raises the question
whether Concerned Taxpayers had representational standing
to seek judicial review of DEQ’s decisions. However, we
will not address that question. The Property Owners’
standing is not questioned; hence, an opinion on Concerned
Taxpayers’ standing would be merely advisory.
2
facility permit shall be complete unless it contains,"
inter alia, “[c]ertification from the governing body of the
county, city or town in which the facility is to be located
that the location and operation of the facility are
consistent with all applicable ordinances.” AEGIS’s
application for a permit contained a certification by an
authorized representative of the governing body of
Brunswick County that “the proposed location and operation
of the facility [were] consistent with all ordinances.”
The Opponents contend, however, that DEQ was without
authority to consider AEGIS's application for the landfill
facility complete or to issue the permit because the
application included three parcels of land not then owned
by AEGIS and not certified by Brunswick County as required
by Code § 10.1-1408.1(B)(1). 3 The Opponents also contend
that DEQ was without authority to consider and grant
amendments to the permit because it included the three non-
certified parcels.
The three parcels are identified in the record as Tax
Map Parcels 53-143A, 63-33A, and 63-47. The parties refer
to the parcels as "the Outparcels." We will employ the
same terminology.
3
It is undisputed that the certification issued by
Brunswick County did not include the three parcels.
3
The record shows that on September 15, 1993, the Board
of Supervisors of Brunswick County granted AEGIS a
conditional use permit (CUP) for the landfill facility on a
parcel of land estimated to contain 755 acres. 4 On October
22, 1993, the County issued the certification that the
location and operation of the facility were consistent with
all ordinances.
As part of the permit process, AEGIS was required to
file a notice of intent with DEQ providing, inter alia, the
precise location of the proposed facility. On October 27,
1993, AEGIS submitted a notice of intent to DEQ along with
site and location maps and the certification of consistency
issued by Brunswick County.
DEQ advised AEGIS to submit a "Part A" application,
and AEGIS filed such an application on December 6, 1993.
The purpose of the Part A application is to provide DEQ
with information necessary to determine site suitability.
As required, AEGIS furnished a key map and a near-vicinity
map with the application. DEQ notified AEGIS on December
21, 1993, that the application appeared to be complete and
4
The action of the Board of Supervisors in granting
the conditional use permit was the subject of an appeal to
this Court in Concerned Taxpayers of Brunswick County v.
County of Brunswick, 249 Va. 320, 455 S.E.2d 712 (1995).
The decision in that case is not pertinent here.
4
that a technical review would be made applying detailed
“siting criteria.”
During the review process, DEQ required AEGIS to file
a modified near-vicinity map, and AEGIS filed the
modification on March 15, 1994. The Outparcels are marked
with an "A" inside a circle on the modified map and are
shown as adjacent parcels outside the "proposed site
boundary." A note on the map states that "[p]arcels
designated by an A [inside a circle] are currently under
negotiation for inclusion in the site." On March 25, 1994,
DEQ approved the Part A application on condition that
"[t]he facility boundary and the maximum extent of the
disposal units shall be maintained as shown on the revised
Near Vicinity Map, submitted to the Waste Division on March
15, 1994."
AEGIS then submitted a Part B application. The
purpose of the Part B application is to provide DEQ with
detailed engineering design and operating plans for the
proposed facility. When the application is complete, DEQ
conducts a technical review of the application, applying
design and construction standards.
While the Part B application was being reviewed, AEGIS
acquired title to the Outparcels and requested a
conditional use permit from Brunswick County authorizing
5
use of the Outparcels in the landfill facility. The County
denied the request.
Apparently aware of the denial, in a letter dated
October 21, 1994, DEQ reminded AEGIS of the condition
attached to the Part A approval which provided that "[t]he
facility boundary and the maximum extent of the disposal
units shall be maintained as shown on the revised Near
Vicinity Map [denoted as Figure 3 in the Part A
application], submitted in the Waste Division on March 25,
1994." DEQ indicated that two of the Outparcels, Nos. 63-
33A and 63-47, were included as part of the facility
boundary in the revised Part B application and would have
to be removed to make the boundary consistent with Figure
3.
Later, AEGIS’s engineering firm responded to a letter
from DEQ dated January 3, 1995, with reference to another
drawing, No. 3, styled "Proposed Site Features," that was
filed with the Part B application. According to the
letter, DEQ had posed this problem:
Parcel 53-43A . . . delineated in Figure 3 of the Part
A [application] is denoted as an adjacent parcel to
the permitted boundary. However, Drawing No. 3 [of
the Part B application] includes this parcel in the
Part A permitted boundary. Please clarify.
The engineering firm responded that “Drawing No. 3 has been
revised to show Parcel 53-143A outside of the Part A
6
permitted boundary.” A map marked "Drawing No. 3,"
apparently the revised version, is contained in the record.
It shows all three Outparcels outside the "Part A Permit
Boundary."
Upon completion of its review, DEQ prepared a draft
permit and held a public hearing in Brunswick County.
Following the hearing and the receipt of public comment,
DEQ issued Permit No. 583 to AEGIS on April 17, 1995. The
permit stated that "[t]he total site property consists of
approximately 854 acres." However, the permit also stated
that "[t]his landfill will consist of two separate sections
for disposal of Industrial waste and Sanitary waste," with
the “total allowable disposal acreage determined by the
Part A Application approval," consisting of "approximately
82 acres for the Industrial Landfill Area (ILA) and
approximately 137 acres for the Sanitary Landfill Area
(SLA).”
The Opponents then filed a petition for appeal in the
Circuit Court of Brunswick County. While the appeal was
pending, AEGIS requested two amendments to the permit. The
second request sought "a 141-acre expansion of the solid
waste disposal footprint in the sanitary area," but neither
amendment involved the Outparcels or effected a change in
the permitted boundary of the landfill facility.
7
However, in comment periods following public hearings
on the permit and the amendments, questions were raised
about facility boundaries and complaint was made that the
original permit included parcels that had not been
certified by the governing body of Brunswick County. DEQ
responded that “[t]he Part A area does not include
[Outparcel] #s 63-33A, 63-47, or 53-143A” and that while
AEGIS had acquired the Outparcels since "the time of the
initial Part A application . . . the Conditional Use Permit
still does not allow the properties to be included in the
Part A [permitted] area." DEQ also stated that "[j]ust
because a property is shown on a landfill drawing does not
necessarily indicate that it is included in the facility
plans for landfilling."
Another question raised during the comment periods
inquired why the permit states "there are over 800 acres
when there are only 755 acres approved in the Brunswick
County Conditional Use Permit?" DEQ replied that the
“total site property consists of approximately 974 acres.”
DEQ explained that the 755-acre figure used in the CUP and
in the Part A approval was derived from tax maps and deed
descriptions and did not include the Outparcels. DEQ
stated that "a more recent survey of the properties within
the boundaries that were estimated to be 755 acres"
8
revealed that "the actual acreage is 822 acres." DEQ said
it was important to note that "waste disposal activities
can only take place within the areas designated potential
disposal areas," consisting of only 428.5 acres.
In another comment, it was asserted that “a note (3)”
on permit maps “says [the unzoned Outparcels] are included
in the Part A permit limits,” and the question was asked,
“[w]hat is to prevent these or any other land in the area
from being used for waste five or ten years from now?” DEQ
responded that “[t]he note 3 has been revised to indicate
that the [Out]parcels are ‘not’ included in the Part A
approval limits.” 5 DEQ also stated that before the
Outparcels could be included within the limits of the Part
A approval they must be declared by Brunswick County to be
consistent with all applicable ordinances and undergo the
process of requesting a major permit amendment, complete
with a public hearing by DEQ.
A final comment posed the question why “[t]he landfill
office” and “certain groundwater monitoring wells” were
located on the unzoned Outparcels. DEQ explained that it
“does not regulate buildings used as offices.” An "office
is not considered a waste management facility [because] no
5
As indicated previously, a map showing this revision
is contained in the record.
9
waste management activities occur [where the office is
located]." As for the monitoring wells, DEQ said “there is
no prohibition against these features being located outside
the limits of Part A approval, as long as they are located
on land owned by AEGIS and have a permanent easement
recorded,” which “has been obtained.” 6
While action on the two amendments was still pending,
AEGIS submitted a request that an authorized representative
of Brunswick County sign a certification that the “proposed
location and operation of the [sanitary landfill] facility
[are] consistent with all ordinances.” The County
Administrator signed the certification on October 9, 1997.
In a letter of the same date addressed to DEQ, the County
Administrator stated that "the proposed expanded landfill
operation and footprint lies within the limits of and is
consistent with the existing Conditional Use Permit as
approved by the Brunswick County Board of Supervisors."
6
DEQ's position on this point is correct. Code
§ 10.1-1408.1(B)(1) requires certification of consistency
by a local governing body for a new solid waste management
facility. Code § 10.1-1400 defines a solid waste
management facility as "a site used for planned treating,
long term storage, or disposing of solid waste." The use
of land for offices and monitoring wells does not
constitute the treatment, storage, or disposal of solid
waste and the land does not become part of a solid waste
management facility. Hence, the requirements of Code
§ 10.1-1408.1(B)(1) do not apply.
10
DEQ granted both amendments, one on December 10, 1997,
and the other on May 4, 1998. By separate petitions, the
Opponents appealed the amendments to the Circuit Court of
Brunswick County, contending that the amendments were
invalid because the original permit included the Outparcels
and was itself invalid. The circuit court consolidated
these appeals with the Opponents' original appeal and
subsequently dismissed all three appeals with prejudice.
In its opinion, the Court of Appeals concluded that
DEQ "improperly issued the permit and permit amendments
that authorized the landfill facility operated by AEGIS
because three parcels which were included in the permit and
permit amendments were not certified by the local
government pursuant to Code § 10.1-1408.1(B)(1)."
Concerned Taxpayers, 31 Va. App. at 805, 525 S.E.2d at 636.
In reaching this conclusion, the Court focused upon
the statement contained in the initial permit that "the
'total site property consists of 854 acres,' which includes
the three after-acquired parcels." Id. at 804, 525 S.E.2d
at 636. The Court also stressed that "[t]he three parcels
were included within the property boundaries on the map
submitted with Part B of the application" and that "DEQ
issued the permit to include the property boundaries
11
represented on the maps submitted with the Part B
application." Id. at 804, 525 S.E.2d at 635-36.
The Opponents embrace the Court's rationale and
support its holding that the three Outparcels were
improperly included in the permit. The Opponents also
focus upon a statement concerning "total site property"
found in the second amendment to the permit, which reads:
"The total site property consists of approximately 974
acres. Of that acreage, 822 acres are approved by the
County and the DEQ for potential waste management
activities." The Opponents then argue that "on its face,
the DEQ permit is issued by its own terms for a facility
site consisting of 974 acres, . . . including all
Outparcels."
The Proponents disagree with the rationale of the
Court of Appeals and insist that the Outparcels were not
included in the permit. Hence, the crucial question
becomes whether DEQ included the three Outparcels in the
permit it issued to AEGIS.
Code § 9-6.14:16, part of the APA, permits judicial
review of agency action. Code § 9-6.14:17 provides that
“[t]he burden shall be upon the party complaining of agency
action to designate and demonstrate an error of law” on
issues including “compliance with statutory authority” and
12
“the substantiality of the evidential support for findings
of fact.”
The Opponents argue that "[t]he question of whether an
agency acted within the scope of its authority, as in the
case at bar, is a question of law" involving statutory
interpretation and, therefore, DEQ's action in determining
that the Outparcels were not included in the permit "is
entitled to little deference." However, whether a given
parcel of land is included in a permit but not included in
the certification of a local governing body is an issue of
fact. And, since Code § 10.1-1408.1(B)(1) is so clear and
unambiguous in its provision that “[n]o application for a
new solid waste management facility permit shall be
complete unless it contains” the certification of
consistency with local ordinances, no statutory
interpretation is required. In such a situation, “[w]hen
the decision on review is . . . to be made on [the] agency
record, the duty of the court with respect to issues of
fact is limited to ascertaining whether there was
substantial evidence in the agency record upon which the
agency as the trier of the facts could reasonably find them
to be as it did." Code § 9-6.14:17; see also Virginia Real
Estate Comm’n v. Bias, 226 Va. 264, 269, 308 S.E.2d 123,
125 (1983). In Bias, we said:
13
The "substantial evidence" standard, adopted by
the General Assembly, is designed to give great
stability and finality to the fact-findings of an
administrative agency. The phrase "substantial
evidence" refers to such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. Under this standard, . . . the court may
reject the agency’s findings of fact only if,
considering the record as a whole, a reasonable mind
would necessarily come to a different conclusion.
226 Va. at 269, 308 S.E.2d at 125 (citations omitted).
In their arguments, the Opponents attempt to equate
the phrase "total site property" with the phrase "facility
site." The former phrase was used in the second amendment
to the permit in this context: "The total site property
consists of approximately 974 acres. Of that acreage, 822
acres are approved by the County and the DEQ for potential
waste management activities, with approximately 428.5 acres
approved for potential waste disposal." In this context,
it is clear that the reference to "total site property
. . . of approximately 974 acres" was intended to define
AEGIS's total holdings, both approved and unapproved, while
the reference to the 822 acres was intended to define the
"facility site," to borrow the Opponents’ terminology,
meaning the site already approved for potential waste
management activities. Hence, we think the phrase "total
site property" means, in context, something entirely
14
different from the phrase "facility site," and we reject
the Opponents' attempt to make them synonymous.
On a related point, the Opponents take the position
that any parcel of land shown on a map submitted in
connection with an application for a landfill permit is
automatically included in the permit if the application is
granted. The Opponents say: "A fortiori, if the
uncertified properties are included in the Part B
application, they are necessarily part of the Permit."
This is an unrealistic approach. The common-sense approach
would be that, if, in a given case, the intention is made
clear to exclude from a permit a particular parcel shown on
a map filed with an application, the permit is valid for
the remaining portion.
That intention is made clear in this case. On the
near vicinity map AEGIS submitted with its notice of
intent, the proposed site boundary not only served to
provide the precise location of the proposed facility but
also clearly excluded the Outparcels, which were depicted
as adjacent parcels. The Outparcels were treated in the
same manner on the revised vicinity map AEGIS submitted on
March 15, 1994, leading to DEQ’s approval of the Part A
application on the condition that “[t]he facility boundary
15
and the maximum extent of the disposal units shall be
maintained as shown on the revised Near Vicinity Map.”
In connection with its Part B application, AEGIS filed
a map which the Opponents say “now includes all three of
the previous parcels shown as under negotiation in the Near
Vicinity Map as part of the property boundary of AEGIS.”
This is correct; the map does include the Outparcels within
the property boundary shown on the map but it does not
include the Outparcels within the “Part A permit boundary,”
also shown on the map. The Opponents’ position on this
point displays a reluctance to distinguish "property
boundary" from "permit boundary," "site boundary," or
"facility boundary," as those terms are used on maps
contained in the record. It is plain that the marking of
the property boundary is intended to show all the property
AEGIS owns in the area while the delineation of the other
boundaries is intended to serve the entirely different
purpose of defining the facility site.
If the intention to exclude the Outparcels from the
permit is not made clear by what has been said so far, the
intention is made crystal clear by a map the Opponents say
"will help us understand [the] issues" in the case. The
map was filed in connection with one of AEGIS's
applications for amendments to the permit and purports to
16
represent all the changes that were made in the plans. The
map shows that the areas encompassed within the "DEQ
permitted boundary" and the "conditional use permit limits"
are identical and that the Outparcels are not encompassed
within either of those areas. Furthermore, Note 3 on the
map states: "[The Outparcels] have since been purchased by
AEGIS Waste Solutions, Inc. They are not, however,
included in the Part A approval limits."
Finally, we think it is of significance that Brunswick
County issued a second certification of consistency after
substantial controversy arose in the local public arena
over the three Outparcels, with the Opponents contending
the Outparcels were included in the Part B application and
DEQ contending they were not. It will not be assumed that
the County made the new certification without knowledge of
the then current status of the DEQ proceedings.
Under these circumstances, we have no difficulty in
finding there was substantial evidence in the agency record
upon which DEQ as the trier of the facts could reasonably
find that the Outparcels were not included in the permit
issued to AEGIS. Indeed, we think the evidence of
exclusion is overwhelming.
Accordingly, we will reverse the judgment of the Court
of Appeals, reinstate the judgment of the Circuit Court of
17
Brunswick County, and enter final judgment in favor of
AEGIS and DEQ.
Reversed and final judgment.
18