Concerned Taxpayers v. Department of Environmental Quality

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Frank and Senior Judge Baker
Argued at Norfolk, Virginia

CONCERNED TAXPAYERS OF BRUNSWICK COUNTY,
J. M. MOSELEY, JERRY L. MARTON, H. BRUCE
BRANDON, JULIA REAVIS BLANDFORD, JAMES F.
HITE, CHARLES M. BLAND AND SIDNEY E. BROWN
OPINION BY
v. Record No. 2180-98-2 JUDGE ROBERT P. FRANK
MARCH 14, 2000
DEPARTMENT OF ENVIRONMENTAL
QUALITY, DENNIS TREACY, ACTING DIRECTOR
AND AEGIS WASTE SOLUTIONS, INC.

FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY
Robert G. O'Hara, Jr., Judge

David S. Bailey (David S. Bailey, L.L.C., on
briefs), for appellants.

Stewart T. Leeth, Assistant Attorney General;
(Mark L. Earley, Attorney General; Deborah L.
Feild, Assistant Attorney General, on brief),
for appellee Department of Environmental
Quality, Dennis Treacy, Acting Director.

Christopher Graham (Timothy G. Hayes;
Hunton & Williams, on brief), for appellee
AEGIS Waste Solutions, Inc.

Concerned Taxpayers of Brunswick County, et al. (appellants)

appeal the Brunswick County Circuit Court's decision finding that

the Department of Environmental Quality (DEQ) and the Director of

DEQ (Director) complied with the requirements of Code

§ 10.1-1408.1(B)(1) in issuing a permit and permit amendments to

AEGIS Waste Solutions, Inc. (AEGIS) authorizing construction and
operation of a solid waste landfill in Brunswick County.

Appellants argue that three parcels of land encompassed by the

permit and the permit amendments were not certified as complying

with all local ordinances as required by Code § 10.1-1408.1(B)(1).

We reverse the decision of the circuit court and enter final

judgment.

I. BACKGROUND

Appellants are an unincorporated organization of Brunswick

County taxpayers and property owners and eight individuals who own

property adjacent to or within a short distance of a solid waste

landfill owned and operated by AEGIS.

In October 1993, as part of the permit application process,

AEGIS requested certification from Brunswick County that the

proposed facility complied with all local ordinances. On October

22, 1993, the Planning Director of Brunswick County issued a

certification that the "proposed location and operation of the

facility is consistent with all ordinances."

On December 6, 1993, AEGIS submitted Part A of the permit

application. The Part A application included the "Near Vicinity

Map" which identified the proposed site boundaries of the solid

waste management facility. The "Near Vicinity Map" submitted by

AEGIS with the Part A application included three parcels, 53-143A,

63-47, and 63-33A, that were marked by the letter "A" on the map.

One of the notes on the map stated that parcels designated by the

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letter "A" were under negotiation for inclusion in the site. DEQ

approved the Part A application on March 25, 1994.

AEGIS submitted the Part B application on June 20, 1994. The

Part B application contained a different map, entitled "Proposed

Site Features." The "Proposed Site Features" Map included the

three parcels within AEGIS's property boundary that were marked by

the letter "A" on the "Near Vicinity Map."

DEQ published a draft permit and held a public hearing on

March 6, 1995. On April 17, 1995, DEQ issued the permit to AEGIS.

The permit stated that the "total site property consists of

approximately 854 acres." The approved Part A application acreage

was 822 acres.

DEQ granted the first amendment to the permit on December 10,

1997, which allowed a change in classification from industrial

disposal to sanitary landfill, a liner design change for the

existing landfill, and acceptance by the facility of regulated

asbestos-containing material. The maps submitted by AEGIS for

this amendment fully incorporated the three parcels as part of the

property and facility boundary.

AEGIS submitted an application for a second permit and

included a second local government certification, dated October 9,

1997. The second certification contained no clarifying language

as to the three parcels. DEQ granted the second permit amendment

on May 4, 1998, allowing expansion of the sanitary landfill area

by 141 acres.

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 II. ANALYSIS

A. Standing

Appellees challenge appellants' standing to appeal under

Code § 10.1-1457(B).

Code § 10.1-1457(B) sets forth the requirements for

judicial review under the Virginia Waste Management Act (Act).

It states:

Any person who has participated, in person
or by the submittal of written comments, in
the public comment process related to a
final decision of the Board or Director
under § 10.1-1408.1 or § 10.1-1426 and who
has exhausted all available administrative
remedies for review of the Board's or
Director's decision, shall be entitled to
judicial review thereof in accordance with
the Administrative Process Act (§ 9-6.14:1
et seq.) if such person meets the standard
for obtaining judicial review of a case or
controversy pursuant to Article III of the
United States Constitution. A person shall
be deemed to meet such standard if (i) such
person has suffered an actual or imminent
injury which is an invasion of a legally
protected interest and which is concrete and
particularized; (ii) such injury is fairly
traceable to the decision of the Board and
not the result of the independent action of
some third party not before the court; and
(iii) such injury will likely be redressed
by a favorable decision by the court.

Code § 10.1-1400 defines a "person" as "an individual,

corporation, partnership, association, a governmental body, a

municipal corporation or any other legal entity."

Code § 8.01-15 permits all unincorporated associations to

sue and be sued under the name by which they are commonly known.

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See Code § 8.01-15. "The words 'unincorporated association'

. . . denote a voluntary group of persons joined together by

mutual consent for the purpose of promoting some stated

objective." Yonce v. Miners Mem. Hosp. Ass'n, 161 F.Supp. 178,

186 (W.D. Va. 1958).

Concerned Taxpayers of Brunswick County describes itself as

an "unincorporated association consisting of members who own

real property in Brunswick County, Virginia." The organization

states that it was "organized and operates for the purpose of

advancing the interests of its members."

We find that Concerned Taxpayers of Brunswick County

satisfies the Yonce definition of an unincorporated association,

and, therefore, qualifies as a "person" pursuant to the

definition set forth in Code § 10.1-1400. Members of the

association who sued individually clearly are "persons" as

defined by the Act.

It is apparent from the record that appellants participated

in the submittal of written comments in the public comment

process.

Further, once the Director issued the permit for the

landfill facility, appellants properly appealed the decision of

the Director to the Circuit Court of Brunswick County.

The Act requires appellants to meet the requirements for

standing under Article III of the United States Constitution.

In Lujan v. Defenders of Wildlife, et al., 504 U.S. 555, 560-61

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(1992) (alterations in originals) (citations omitted), the

United States Supreme Court set forth the three requirements for

Article III standing:

First, the plaintiff must have suffered an
"injury in fact"-an invasion of a legally
protected interest which is (a) concrete and
particularized . . . and (b) "actual or
imminent, not 'conjectural' or
'hypothetical,'" . . . . Second, there must
be a causal connection between the injury
and the conduct complained of-the injury has
to be "fairly . . . trace[able] to the
challenged action of the defendant, and not
. . . th[e] result [of] the independent
action of some third party not before the
court." . . . Third, it must be "likely," as
opposed to merely "speculative," that the
injury will be "redressed by a favorable
decision."

In Warth v. Seldin, 422 U.S. 490 (1975), the United States

Supreme Court addressed the Article III standing requirements

for associations. The Court held that an association

must allege that its members, or any one of
them, are suffering immediate or threatened
injury as a result of the challenged action
of the sort that would make out a
justiciable case had the members themselves
brought suit. So long as this can be
established, and so long as the nature of
the claim and the relief sought does not
make the individual participation of each
injured party indispensable to proper
resolution of the cause, the association may
be an appropriate representative of its
members, entitled to invoke the court's
jurisdiction.

Warth, 422 U.S. at 511.

In Hunt v. Washington State Apple Advertising Comm'n, 432

U.S. 333 (1977), the United States Supreme Court developed a

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three-prong test for associational standing based on the holding

in Warth. The Court stated an association has Article III

standing to sue on behalf of its members when "(a) its members

would otherwise have standing to sue in their own right; (b) the

interests it seeks to protect are germane to the organization's

purpose; and (c) neither the claim asserted nor the relief

requested requires the participation of individual members in

the lawsuit." Hunt, 432 U.S. at 343.

Code § 10.1-1457(B) merely reiterates the requirements set

out in Lujan. Therefore, fulfillment of the tests set forth in

Lujan and Hunt results in satisfaction of the standing

requirement under Code § 10.1-1457(B).

The first prong of the test for associational standing

requires that members of the association have standing to sue in

their own right. See id. In United Food and Commercial Workers

Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 555 (1996),

the Court stated that this prong requires "at least one member

with standing to present, in his or her own right, the claim

. . . pleaded by the association." Therefore, at least one

member of the association, but not all of the members, must

satisfy the Lujan test for Article III standing.

The Lujan test first requires that the injury be "concrete

and particularized" and "imminent," not "hypothetical." See

Lujan, 504 U.S. at 560. The Court defined a particularized

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interest as one in which "the injury must affect the plaintiff

in a personal and individual way." Id. at 561 n.1.

Environmental interests are legally protected under this

standard. See Sierra Club v. Morton, 405 U.S. 727, 734 (1972).

"The 'injury in fact' test requires [however] that the party

seeking review be himself among the injured." Id. at 734-35.

For the purposes of ruling on a motion to
dismiss for want of standing, both the trial
and reviewing courts must accept as true all
material allegations of the complaint, and
must construe the complaint in favor of the
complaining party. At the same time, it is
within the trial court's power to allow or
to require the plaintiff to supply, by
amendment to the complaint or by affidavits,
further particularized allegations of fact
deemed supportive of plaintiff's standing.
If, after this opportunity, the plaintiff's
standing does not adequately appear from all
materials of record, the complaint must be
dismissed.

Warth, 422 U.S. at 501-02 (citations omitted).

Under the Act, the procedures for issuance of a permit to

construct and operate a landfill are designed to prevent

"substantial or potential danger to human health or the

environment." Code § 10.1-1408.1(D).

Appellants' allegations, taken as true, indicate that they

have environmental, human health, and economic interests at

stake. In their petition for appeal, appellants stated:

[A]ppellants are harmed by DEQ's action
and the approved landfill through decreased
property values, potential pollution of
groundwater . . ., exposure to waste

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 materials and other harms as detailed
herein. . . .

All members of Concerned Taxpayers
listed herein rely upon groundwater
resources for their drinking water needs, a
use which is threatened by the proposed
facility's potential for groundwater
contamination.

Appellants' allegations demonstrate the potential danger to

environmental, human health, and economic interests posed by the

improper issuance of the permit. We, therefore, find that

appellants are subject to a "concrete and particularized" injury

as a result of the improper issuance of the permit and the

operation of the landfill pursuant to such permit.

Additionally, we believe that appellants have suffered a

violation of their procedural rights. Generally, "the person

who has been accorded a procedural right to protect his concrete

interest can assert that right without meeting all the normal

standards for redressability and immediacy." Lujan, 504 U.S. at

573 n.7. In Lujan, the United States Supreme Court illustrated

a violation of a procedural right:

One living adjacent to the site for proposed
construction of a federally licensed dam has
standing to challenge the licensing agency's
failure to prepare an environmental impact
statement, even though he cannot establish
with any certainty that the statement will
cause the license to be withheld or altered,
and even though the dam will not be
completed for many years.

Id. We believe that this case is analogous to the Court's

example in Lujan, and hold that appellants have suffered injury

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because their procedural right to proper governmental

certification of the location of the landfill facility was

violated by the issuance of the permit and subsequent operation

of the landfill.

Lujan next requires that there be a causal connection

between the complained of actions and the injury. See id. at

560. Code § 10.1-1408.1(D) states that the Director must

determine that the "proposed facility poses no substantial

present or potential danger to human health or the environment"

prior to the issuance of the permit. Code § 10.1-1408.1(B)(1)

requires certification from the local government that the

proposed facility is "consistent with all applicable

ordinances." Code § 10.1-1408.1(B)(1).

Code § 10.1-1408.1, therefore, supports the inference that

the legislature intended the Act to protect environmental and

public health interests. DEQ's issuance of a permit without

proper certification does not achieve such purpose, nor does

operation of the landfill by AEGIS. Therefore, the causal

connection between appellants' alleged injuries and the actions

of the appellees is clear.

The final requirement under Lujan is the redressability of

the injury. See Lujan, 504 U.S. at 561. Invalidation of the

landfill permit would result in a cessation of landfilling at

the facility, which would protect appellants' environmental,

human health, and economic interests. Further, in order to

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resume landfilling at the facility, a permit with the requisite

certification must be obtained. Such a permit, as intended by

the legislature, would ensure protection for appellants'

interests. We, therefore, find that the individual appellants

and members of Concerned Taxpayers satisfy the Lujan test.

Additionally, Concerned Taxpayers must satisfy the second

and third prongs under Hunt. The second prong under Hunt

requires that the purpose of the association must be germane to

the interests it seeks to protect. See Hunt, 432 U.S. at 343.

Concerned Taxpayers' self-description states that it is composed

of Brunswick County landowners and operates to further the

interests of its members. We find that the purpose of Concerned

Taxpayers, to protect the property and interests of its members,

is germane to its challenge of the permit issued by DEQ to

AEGIS, which Concerned Taxpayers alleges will impact its

members' property values and potentially pollute its members'

groundwater resources. We, therefore, hold that Concerned

Taxpayers has satisfied the second prong under Hunt.

The third prong of the Hunt test states that the claim

asserted or the relief sought cannot require the participation

of individual members of the association in the lawsuit. See

id. The Court, in United Food, stated that this prong is a

prudential requirement, rather than a constitutional necessity.

See United Food, 517 U.S. at 555-56. Concerned Taxpayers'

requests for relief in its appeals to the circuit court stated:

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 (a) Declare that the Department of
Environmental Quality improperly considered
the AEGIS permit application complete when
there was evidence presented that the
certification of compliance with local
government ordinances, required by Va. Code
§ 10.1-1408.1(B)(1), was invalid; or, in the
alternative, declare that DEQ failed to
follow its own regulations to ensure that
the applicant had legal control over the
proposed landfill site in the face of
evidence that the applicant did not have
such control;
(b) Declare that the Department of
Environmental Quality failed to make the
required independent determination of
whether the proposed facility poses any
substantial present or potential danger to
human health or the environment and to
include such conditions or requirements in
the solid waste permit to prevent such
potential danger in accordance with
statutory mandates;
(c) Declare that the DEQ was without
authority to consider or approve land
parcels for landfill operation or disposal
which were not subject to certification by
the County;
(d) Declare that the DEQ must provide
for the taking of evidence and other
attributes of an evidentiary hearing in
accordance with Va. Code § 9-6[.]14:12 prior
to issuance of any landfill permit pursuant
to Va. Code § 10.1-1408.1;
(e) Remand to the Department of
Environmental Quality Solid Waste Facility
Permit No. 583 until such time as DEQ
resolves and corrects the statutory and
procedural errors found by the Court;
(f) Award Concerned Taxpayers their
costs, including reasonable attorneys fees,
expended in this matter, in accordance with
Va. Code § 9-6.14:21; and
(g) Grant such other relief in this
action as it may deem appropriate.

* * * * * * *

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 (a) Declare that the Department of
Environmental Quality was without legal
authority to consider or approve an
application by AEGIS for a major permit
amendment which contained land parcels not
certified by the local government;
(b) Remand to the Department of
Environmental Quality Solid Waste Facility
Permit No. 583 and the major amendment of
December 10, 1997 until such time as DEQ
resolves and corrects the statutory and
procedural errors found by the Court, and
processes any application by AEGIS in full
accordance with the Virginia Code; . . . .

* * * * * * *

(B) Remand to Department of
Environmental Quality Solid Waste Permit No.
583 and the Second Major Permit Amendment of
May 4, 1998 until such time as DEQ resolves
and corrects the statutory and procedural
errors found by the Court, and processes any
application by AEGIS in full accordance with
the Virginia Code; . . . .

We find that the relief requested by Concerned Taxpayers does

not require individualized proof and may be resolved in a group

context.

We, therefore, hold that Concerned Taxpayers and it members

who brought claims individually, have standing to bring their

claims pursuant to Code § 10.1-1457(B) and Article III of the

United States Constitution.

B. Statutory Analysis

Appellants contend: 1) DEQ lacked authority to consider a

solid waste facility permit application complete or to issue the

permit when the application contained land parcels which were

not certified by the local government pursuant to Code

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§ 10.1-1408.1(B)(1) and 2) DEQ lacked authority to consider and

issue amendments to the solid waste facility permit because it

contained land parcels which were not certified by the local

governing body pursuant to Code § 10.1-1408.1(B)(1). We agree

with appellants and reverse the decision of the circuit court.

Code § 9-6.14:17 authorizes judicial review of agency

decisions. In Johnston-Willis Ltd. v. Kenley, 6 Va. App. 231,

243, 369 S.E.2d 1, 7 (1988), we defined "the appropriate

standard of review in terms of the degree of deference to be

given to agency decisions." We stated:

[A]gency findings of fact are to be accorded
great deference under the substantial
evidence standard of review. However, when
deciding whether an agency has followed
proper procedures or complied with statutory
authority . . . , an inquiry into whether
there is substantial evidence in the record
to support findings of fact of an agency is
wholly inappropriate. Indeed, even though
an agency's findings of fact may be
supported by substantial evidence in the
record, it may be subject to reversal
because the agency failed to observe
required procedures or to comply with
statutory authority. See, e.g., Atkinson v.
Virginia Alcoholic Beverage Control
Commission, 1 Va. App. 172, 336 S.E.2d 527
(1985). Thus, where the legal issues
require a determination by the reviewing
court whether an agency has, for example,
accorded constitutional rights, failed to
comply with statutory authority, or failed
to observe required procedures, less
deference is required and the reviewing
courts should not abdicate their judicial
function and merely rubber-stamp an agency
determination.

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Johnston-Willis, 6 Va. App. at 243, 369 S.E.2d at 7-8. However,

when the question requires an interpretation that is "within

specialized competence of the agency," the agency's decision is

afforded special deference. Id. at 244, 369 S.E.2d at 8.

In this case, we must determine whether DEQ properly issued

the permit for operation of the landfill pursuant to Code

§ 10.1-1408.1(A). The Act and the Administrative Code clearly

state the steps necessary for issuance of a landfill permit. We

find that this is a statutory issue. Further, we do not find

that determination of the fulfillment of the statutory

requirements for the permitting process necessitates the

"specialized competence" of DEQ. We, therefore, afford DEQ's

decision little deference.

Code § 10.1-1408.1(A) states that no person shall be

permitted to operate a landfill for the treatment, disposal or

storage of non-hazardous waste without a permit from the

Director. See Code § 10.1-1408.1(A). In order to initiate the

permit application process, the person proposing to build a new

solid waste management facility, modify an existing solid waste

management facility or amend an existing permit must file a

notice of intent with the Director stating the desired permit or

permit amendment, the precise location of the proposed facility,

and the intended use of the facility. See 9 Virginia

Administrative Code § 20-80-500(B)(1). The notice of intent

must be accompanied by area and site location maps. See id.

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Code § 10.1-1408.1(B)(1) states that the permit application is

not complete unless it contains "[c]ertification from the

governing body of the county, city or town in which the facility

is to be located and that the location and operation of the

facility are consistent with all applicable ordinances." The

Virginia Administrative Code augments the procedure set forth in

Code § 10.1-1408.1(B)(1), and states that the certification from

the local government must accompany the notice of intent. See

9 Virginia Administrative Code § 20-80-500(B)(3). If the

location and operation of the facility are certified by the

local governing body as consistent with its ordinances, without

qualifications, conditions, or reservations, the applicant may

submit the application in two parts, Part A and Part B. See 9

Virginia Administrative Code § 20-80-500(B)(4). "Part A

application provides the information essential for assessment of

the site suitability for the proposed facility. It contains

information on the proposed facility to be able to determine

site suitability for intended uses. It provides information on

all siting criteria applicable to the proposed facility." 9

Virginia Administrative Code § 20-80-500(C). "The Part B

application involves the submission of the detailed engineering

design and operating plans for the proposed facility." 9

Virginia Administrative Code § 20-80-500(D).

In this case, it is undisputed that AEGIS submitted a

certification from Brunswick County dated October 22, 1993

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stating that the proposed landfill facility complied with all

local ordinances. Appellees argue that this certification

fulfilled the statutory requirement under Code § 10.1-1408.1(B).

Appellees assert that once DEQ received the certification from

Brunswick County, DEQ was under no statutory obligation to

investigate whether the facility did in fact comply with all

local ordinances.

We believe appellees' argument is flawed. Chronologically,

the notice of intent, accompanied by the certification,

initiates the permit application process. The notice of intent

must include a statement as to the precise location of the

facility. If such location is certified by the local

government, then the application may be submitted in two parts:

Part A and Part B. Thus, the certification and the permit

application are based on the precise location of the facility as

designated in the notice of intent.

At the time of the certification and the subsequent

submittal of the Part A application, it is undisputed that AEGIS

did not own the three land parcels at issue in this case.

Appellees concede AEGIS acquired the three parcels after the

issuance of the certification and after AEGIS submitted Part A

of the permit application but before AEGIS submitted Part B of

the application. The three parcels were included within the

property boundaries on the map submitted with Part B of the

application. DEQ was aware that the three parcels were not

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acquired by AEGIS until after it submitted Part A of the permit

application because the map submitted with Part B stated that

the parcels were under negotiation at the time Part A was

submitted. DEQ issued the permit to include the property

boundaries represented on the maps submitted with the Part B

application. We hold that the county certification never

included the three after-acquired land parcels. The regulations

clearly specify that the permit application process can proceed

only as to the parcels included in the certification. We hold,

therefore, that the permit application process, i.e. Parts A and

B, and, ultimately, the issuance of the permit could proceed

only as to those parcels included in the certification.

Appellees argue that the disposal activities at the

facility occur within the boundaries authorized by the Part A

application approval, and, therefore the facility is consistent

with the certification. We believe that by arguing such,

appellees are attempting to bifurcate the permit. It is the

permit application process, however, that is bifurcated into

Parts A and B. The actual permit indicated that the "total site

property consists of 854 acres," which includes the three

after-acquired parcels. The permit discusses the acreage

suitable for disposal as determined during the review of Part A

of the application, but does not contain a Part A permit and a

Part B permit. There is but one permit, and in this case the

three after-acquired parcels were included in the "total site

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property" for which the permit was issued. While appellees'

argument that disposal only occurs in the 822 acres approved for

disposal during Part A of the application process may be

correct, it is irrelevant as to the determination of whether the

three after-acquired parcels were included in the actual permit.

Appellants contend that DEQ lacked authority to consider

and issue amendments to the permit because the permit contained

parcels not certified by the local governing body pursuant to

Code § 10.1-1408.1(B)(1). We agree.

In Hurt v. Caldwell, 222 Va. 91, 98, 279 S.E.2d 138, 142

(1981), the Supreme Court of Virginia held that a building

permit issued by a municipal zoning administrator was a nullity

because the permit application did not comply with a local

zoning ordinance. Additionally, the Court reversed the trial

court's direction to the city to treat the building permit as

the initial step in correctly completing the application process

pursuant to the ordinance. See id.

From Hurt, we conclude that if a permit is a nullity, one

that is void ab initio, the permit cannot be used to create

subsequent valid action. If the original permit is void, any

subsequent action based on the original permit is void as well.

Therefore, we hold that because the original landfill permit was

improperly issued in this case and was void, the amendments to

that permit also are void.

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 III. CONCLUSION

For these reasons, we hold that appellants have satisfied

the standing requirement set forth in Code § 10.1-1457(B).

Additionally, we hold that DEQ and the Director 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).

Reversed and final judgment.

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