Crutchfield v. State Water Control Board

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Humphreys and Senior Judge Willis
Argued at Alexandria, Virginia

FRANCES BROADDUS CRUTCHFIELD AND
HENRY RUFFIN BROADDUS
OPINION BY
v. Record No. 1037-04-2 JUDGE JERE M.H. WILLIS, JR.
MAY 3, 2005
STATE WATER CONTROL BOARD,
DEPARTMENT OF ENVIRONMENTAL QUALITY AND
THE COUNTY OF HANOVER, VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge

Benjamin A. Thorp IV (William B. Ellis; Ellis Thorp & Jewett,
PLLC; Ellis & Thorp, PLLC, on briefs), for appellants.

John K. Byrum, Jr., Assistant Attorney General (Jerry W. Kilgore,
Attorney General; Roger L. Chaffe, Senior Assistant Attorney
General; Rick R. Linker, Assistant Attorney General, on brief), for
State Water Control Board and Department of Environmental
Quality.

Barbara M. Rose, Deputy County Attorney (Sterling E. Rives, III,
County Attorney, on brief), for the County of Hanover.

Amici Curiae: The Chesapeake Bay Foundation, Inc. and
The Sierra Club (Christopher C. Spencer; Robert L. Wise; Robyn
P. Ayres; Bowman and Brooke LLP, on brief), for appellants.

Frances Broaddus Crutchfield and Henry Ruffin Broaddus (appellants) appeal a final order

of the trial court finding that the State Water Control Board (SWCB) properly issued a Virginia

Pollution Discharge Elimination System (VPDES) permit to Hanover County (the County) for the

discharge of treated wastewater from the County’s Totopotomy Wastewater Treatment Plant into

the Pamunkey River. On appeal, appellants contend the trial court erred by holding: (1) the SWCB

did not violate State Water Control Law or its own regulations when issuing the VPDES permit
authorizing a new discharge of oxygen consuming pollutants to a stream that already violates Water

Quality Standards for dissolved oxygen without first demonstrating that the discharge is consistent

with a plan that will achieve those Water Quality Standards; and (2) the decision by the SWCB to

issue the VPDES permit was supported by “substantial evidence” when it rested entirely on an

assumption—contradicted by evidence—that effluent limitations that were predicted not to

substantially degrade water quality in small, flowing, non-tidal streams would also not substantially

degrade water quality in a large, slow-moving, tidal river such as the Pamunkey.

We affirm the trial court’s decision that the SWCB properly issued the VPDES permit.

Background

Appellants own Newcastle Farm, an 878 acre property located in Hanover County. The

farm has several miles of river frontage along the Pamunkey River. In 1997, the County applied for

a VPDES permit to discharge up to ten million gallons per day of treated wastewater into the

Pamunkey River from an outfall located on appellants’ farm. Prior to issuing the permit, the SWCB

solicited comments from various state and federal agencies. The United States Environmental

Protection Agency and the Virginia Department of Health indicated they had no objections to the

issuance of the permit as drafted.

In January 1999, the SWCB held a public hearing on the draft permit. Appellants presented

evidence at the hearing, and they submitted written comments to the SWCB. The comments

explained appellants’ opposition to the project based on their concerns that the proposed discharge

would adversely affect the river’s already impaired water quality, would cause damage to fish and

other wildlife, and would deprive them of recreational uses of the river. Numerous other persons

provided both oral and written comments concerning the permit. The SWCB staff provided to the

SWCB a summary of these comments and the SWCB staff responses to the comments prior to the

final consideration of the SWCB whether to issue the permit.

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 One of the major issues raised in the public comment period was the impact of the proposed

discharge on the dissolved oxygen (DO) levels of the Pamunkey River. The Pamunkey River near

the proposed discharge point had a known history of naturally occurring low DO levels, particularly

in the summer months. The SWCB staff believed the extensive marshes in the area were the likely

cause of the low DO conditions. Since 1987, the SWCB staff used effluent limitations of 10 mg/l

CBDO5, 10 mg/l TSS, and 3 mg/l TKN for discharges that do not meet water quality standards due

to swamp and marsh-like conditions. According to the “Summary of Issues and [SWCB] Staff

Response” document, these “10-10-3” limitations “establish a level of treatment which in the best

professional judgment of the [SWCB]’s staff will not further contribute to lower dissolved oxygen

levels in the receiving stream, regardless of the size of the discharge.” In addition, the SWCB staff

had used this same standard in the past to establish effluent limitations for three other discharges

into the Pamunkey River.

Following the public comment period, the SWCB staff reconsidered the permit limitations

for DO and recommended a change in the minimum permit level from 5.0 mg/l to 6.5 mg/l. The

staff concluded that under warm weather conditions the limit of 6.5 mg/l would ensure that the DO

in the discharge was at or above the background level in the river. Appellees referred to this as a

self-sustaining limit—one that will not cause or contribute to water quality violations.

On April 28, 1999, the SWCB granted the County the VPDES permit at issue in this case.

We note that the permit expired on April 28, 2004. However, the County timely applied for renewal

of the permit and, pursuant to 9 VAC 25-31-70(B), the expired permit continues as “fully effective

and enforceable” pending decision on the renewal application.1

1
9 VAC 25-31-70 provides in part:

A. The permit shall expire at the end of its term, except that the
conditions of an expired permit continue in force until the effective
date of a new permit if:

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 Appellants appealed the issuance of the permit to the trial court pursuant to the Virginia

Administrative Process Act. Code §§ 2.2-4000 through 2.2-4033. Appellants argued to the trial

court that the SWCB violated its own regulations by issuing the permit. Appellants contended that

SWCB regulations required the SWCB to determine that the proposed discharge will not cause or

contribute to violations of water quality standards, impair uses of the river, or harm human, plant or

animal life. Appellants argued that the SWCB failed to make these findings and that the record

lacked substantial evidence to support the issuance of the permit. Further, appellants asserted that

any discharge into the river would contribute to the low DO problems in the river.

The trial court found that, upon approving the permit, the SWCB imposed self-sustaining

limits which are “supposed to establish a level of treatment of the effluent discharge that will not

cause or contribute to water quality violations” in the Pamunkey River. The court stated that,

according to the SWCB, the DO levels of the treated discharge are so low that it exerts “no oxygen

demand load on the water in the river.” Furthermore, the court noted that the SWCB contends that

the determining factor of the impact to the river water is not how many pounds of nutrients are

discharged, but the concentration of the nutrients in the discharge.

Citing several technical memoranda in the agency record, the trial court found that evidence

supported the conclusion by the SWCB that with the permit limits in place, the effluent from the

wastewater treatment plant would “not further contribute to lower dissolved oxygen levels” in the

river. The trial court further held that an SWCB regulation pertaining to new discharges to

1. The permittee has submitted a timely application . . .
which is a complete application for a new permit; and

2. The [SWCB], through no fault of the permittee, does not
issue a new permit with an effective date on or before the
expiration date of the previous permit.

B. Permits continued under this section remain fully effective and
enforceable.

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officially designated impaired waterways was inapplicable to this case because the regulation does

not prohibit new permits where the discharge will not cause or contribute to violation of water

quality in the receiving water. See 9 VAC 25-31-50(C)(9). The trial court concluded that the

SWCB issued the permit in compliance with the applicable provisions of state and federal law,

including the water quality standards. Appellants appealed the trial court’s decision to this Court.

Analysis

“In an appeal to the circuit court from a decision by an agency, the burden is upon the

appealing party to demonstrate error.” Carter v. Gordon, 28 Va. App. 133, 141, 502 S.E.2d 697,

700-01 (1998). Judicial review of an agency decision is limited to determining (1) “[w]hether the

agency acted in accordance with law;” (2) “[w]hether the agency made a procedural error which

was not harmless error;” and (3) “[w]hether the agency had sufficient evidential support for its

findings of fact.” Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 242, 369 S.E.2d 1, 7 (1998).

The review of an agency’s factual findings “is limited to determining whether substantial evidence

in the agency record supports its decision.” Avante at Lynchburg, Inc. v. Teefey, 28 Va. App. 156,

160, 502 S.E.2d 708, 710 (1998). Under the substantial evidence standard, the reviewing “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.’” Virginia Real Estate Comm’n v. Bias,

226 Va. 264, 269, 308 S.E.2d 123, 125 (1983) (quoting B. Mezines, Administrative Law § 51.01

(1981)). “The phrase ‘substantial evidence’ refers to ‘such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’” Id. (citation omitted).

In accordance with familiar principles of appellate review, “we review the facts in the light

most favorable to sustaining the [SWCB]’s action,” Atkinson v. Virginia Alcohol Beverage Control

Comm’n, 1 Va. App. 172, 176, 336 S.E.2d 527, 530 (1985), and “take due account of the

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presumption of official regularity, the experience and specialized competence of the agency, and the

purposes of the basic law under which the agency has acted.” Code § 2.2-4027.

State Water Control Law prohibits the discharge of pollutants into the waters of Virginia

except in compliance with a permit issued by the SWCB. Code § 62.1-44.5. Under the authority of

the water control law, the SWCB issues VPDES discharge permits to municipal sewage treatment

plants. Code § 62.1-44.19. Here, substantial evidence supported the trial court’s ruling that the

SWCB issued the permit in accordance with the applicable water control laws and regulations.

The agency record consists of numerous technical memoranda addressing stream analyses

and effluent permit recommendations. During the permitting process, the SWCB staff consulted

with federal and state agencies such as the United States Environmental Protection Agency, the

Virginia Department of Health, and the Virginia Department of Game and Inland Fisheries. These

agencies submitted written comments concerning the draft permit, which were made a part of the

agency record. In response to concerns expressed during the public comment period, the SWCB

staff undertook further evaluation of the draft permit and recommended more stringent permit

requirements to ensure that the dissolved oxygen in the discharge was at or above background level

in the river. The SWCB staff made presentations to and answered questions from the SWCB

concerning the permitting process. The SWCB also considered the written testimonial and

scientific evidence contained in the agency record prior to issuing the permit.

In addition, several technical memoranda prepared by the SWCB staff support the

established permit limits. One document entitled “Advisory Notification of Effluent Limits for

Swamp and Marsh Waters” by A.J. Anthony recommended the 10-10-3 limit, stating that staff

have found over the past years, through application of modeling
technology to small streams, that the [10-10-3] limits are
representative of effluents that are “self-sustaining;” that is: such
an effluent will not normally violate the stream standard even if the
stream consists of 100% effluent.

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 Furthermore, the SWCB had used these same permit limits for other sewage treatment

plants. In addition, the document entitled “Summary of Issues and [SWCB] Staff Response”

stated that the 10-10-3 recommended permit levels “establish a level of treatment which in the

best professional judgment of the [SWCB] staff will not further contribute to lower dissolved

oxygen levels in the receiving stream, regardless of the size of the discharge.”

“Where the issue is whether there is substantial evidence to support findings of fact, great

deference is to be accorded the agency decision.” Johnston-Willis, 6 Va. App. at 246, 369

S.E.2d at 9. “In determining whether credible evidence exists, the appellate court does not retry

the facts, reweigh the preponderance of the evidence, or make its own determination of the

credibility of the witnesses.” Wagner Enterprises, Inc. v. Brooks, 12 Va. App. 890, 894, 407

S.E.2d 32, 35 (1991).

The decision of the SWCB addressed the potentially harmful impacts of the discharge by

imposing stringent permit limits. As a result, SWCB acted within the scope of its authority in

issuing the permit. Furthermore, the decision to issue the permit was supported by substantial

and credible evidence in the agency record. Therefore, the trial court did not err in affirming the

decision of the SWCB.

Appellants produced before the trial court and have argued before this Court items of

evidence not laid before the SWCB. Indeed, much of this evidence postdates the issuance of the

permit. Appellants rely on Code § 2.2-4027 as authority for the courts to consider this evidence.

The pertinent portion of the statute states:

Where there is no agency record so required and made, any
necessary facts in controversy shall be determined by the court
upon the basis of the agency file, minutes, and records of its
proceedings under [Code] § 2.2-4007 or [Code] § 2.2-4019 as
augmented, if need be, by the agency pursuant to order of the court
or supplemented by any allowable and necessary proofs adduced in
court . . . .

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 Thus, Code § 2.2-4027 allows the record to be supplemented by “any allowable and

necessary proofs adduced in court” only where there is no agency record. See School Board v.

Nicely, 12 Va. App. 1051, 1062 n.2, 408 S.E.2d 545, 551 n.2 (1991) (“[T]his language only

allows circuit courts to assemble a record where no agency record exists, and still the court must

accept whatever findings the agency made in its files, minutes, records or elsewhere.”). Clearly,

there is such an agency record here. Moreover, the standard of judicial review provided by the

Virginia Administrative Process Act is review of the agency decision in the light of the record

before it.

When the decision on review is to be made on the agency
record, the duty of the court with respect to issues of fact shall be
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 § 2.2-4027. Furthermore, to allow parties to freely supplement the agency record after the

agency has rendered a decision would authorize trial of the merits of the case de novo, resulting

in the trial court making, not reviewing, the administrative decision.

A case subject to the standard of review outlined in Code
§ [2.2-4027] [and] . . . the factual issues on appeal [therein] are
controlled solely by the agency record. The reviewing court is not
free to take additional evidence, even at the request of one of the
parties. Therefore, under the VAPA, the circuit court’s role in an
appeal from an agency decision is equivalent to an appellate
court’s role in an appeal from a trial court. In this sense, the
General Assembly has provided that a circuit court acts as an
appellate tribunal.

Nicely, 12 Va. App. at 1061-62, 408 S.E.2d at 551 (citations and footnote omitted).

Accordingly, the post-agency decision evidence is not appropriate evidence for consideration of

whether the SWCB properly issued the permit. We note, however, that consideration of the

permit renewal application will involve the merits of the permit to be considered based on the

current situation.

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 Pursuant to Code § 62.1-44.19(A), an owner of a sewage treatment works shall apply to

the SWCB for a permit to discharge into state waters. Code § 62.1-44.19(B) provides that the

SWCB “shall approve such application if it determines that minimum treatment requirements

will be met and that the discharge will not result in violations of water quality standards.” In

addition to the statutory requisites, regulations promulgated by the SWCB delineate the

procedures and requirements to be followed in the VPDES permitting process. One of these

regulations provides that no VPDES permit shall be issued:

To a new source or a new discharger, if the discharge from its
construction or operation will cause or contribute to the violation
of water quality standards. The owner or operator of a new source
or new discharger proposing to discharge into a water segment
which does not meet applicable water quality standards or is not
expected to meet those standards even after the application of the
effluent limitations required by the law and [Code]
§§ 301(b)(1)(A) and 301(b)(1)(B) of the [federal Clean Water
Act], and for which the [Virginia Department of Environmental
Quality] has performed a pollutants load allocation for the
pollutant to be discharged, must demonstrate before the close of
the public comment period, that:

a. There are sufficient remaining pollutant load allocations
to allow for the discharge; and

b. The existing dischargers into that segment are subject to
compliance schedules designed to bring the segment into
compliance with applicable water quality standards.

9 VAC 25-31-50(C)(9).

Appellants contend that this regulation prohibits new discharges of pollutants to waters

that violate applicable standards for that pollutant unless a pollutant load allocation analysis is

performed and it demonstrates that the Water Quality Standard will be achieved. We find that

the trial court correctly held that the first sentence of the regulation controls. The SWCB had

before it substantial evidence that the proposed effluent, itself being “self-sustaining” and

meeting water quality standards, would not “cause or contribute to the violation of water quality

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standards.” Appellants contend that the effluent authorized by the permit would contain oxygen

consuming materials, thus contributing to the pollution of the river. However, the issue is not the

raw quantity of such materials, but the concentration of the nutrients in the discharge and the

resulting water quality. Evidence in the record provides a basis for the conclusion of the SWCB

that with the established permit limits, the treated effluent will not contribute to lower DO levels

in the river.

Appellants also argue that the second sentence of the regulation required a pollutant load

allocation, an assessment of the proposed effluent against that allocation, and a determination

that the proposed operation would contribute to bringing the river as a whole into water quality

compliance. We find that the trial court correctly held that the making of such an allocation is a

predicate condition to the application of the second sentence, not a consequence of that sentence.

The record discloses the making of no such allocation, hence the second sentence of the

regulation does not apply here. Furthermore, the proposed effluent being compliant with water

quality standards, its infusion will tend to ameliorate pro tanto the overall quality of the river.

For these reasons, we affirm the decision of the trial court.

Affirmed.

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