COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
RESIDENTS INVOLVED IN SAVING
THE ENVIRONMENT, INC., THE CONGREGATION
OF SECOND MOUNT OLIVE BAPTIST CHURCH,
D. WINIFRED BELDON AND KENNETH R. BYRD,
INDIVIDUALLY AND AS TRUSTEES OF SECOND
MOUNT OLIVE BAPTIST CHURCH, JAMES ROBINSON,
EDNA ROBINSON, MORVITZ JORDAN,
DOLLY JORDAN AND BETTY A. DUNGEE
MEMORANDUM OPINION * BY
v. Record No. 3103-99-2 JUDGE NELSON T. OVERTON
JULY 25, 2000
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF ENVIRONMENTAL QUALITY, ex rel.
DEPARTMENT OF WASTE MANAGEMENT, DIRECTOR AND
EXECUTIVE SECRETARY AND
BFI WASTE SYSTEMS OF NORTH AMERICA, INC.
FROM THE CIRCUIT COURT OF KING AND QUEEN COUNTY
Thomas B. Hoover, Judge
Clarence M. Dunnaville, Jr. (Henry L. Marsh,
III; Frederick H. Marsh; David S. Bailey;
Hill, Tucker & Marsh, on briefs), for
appellants.
John R. Butcher, Senior Assistant Attorney
General (Mark L. Earley, Attorney General;
Deborah Love Feild, Assistant Attorney
General, on brief), for appellee Commonwealth
of Virginia, Department of Environmental
Quality, ex rel. Department of Waste
Management, Director and Executive
Secretary.
Timothy G. Hayes (Hunton & Williams, on
brief), for appellee BFI Waste Systems of
North America, Inc.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Residents Involved in Saving the Environment, Inc., et al.,
("Residents") 1 appeals a decision of the trial court upholding the
issuance of a landfill permit in King and Queen County by the
Department of Environmental Quality ("DEQ"). Residents argues the
trial court erred in: (1) finding the Director of DEQ ("the
Director") complied with Code § 10.1-1408.1(D) and the mandate of
the Supreme Court of Virginia in issuing the permit; (2)
dismissing Counts II through VII of the petition for appeal; and
(3) granting the motions for summary judgment filed by DEQ and
Browning-Ferris Waste Systems of North America, Inc. ("BFI"). DEQ
raises the following additional issues: (4) the trial court erred
in allowing the amendment to the petition stating claims of the
trustees of Second Mount Olive Baptist Church ("the church"); and
(5) Residents Corporation and the church lack standing to appeal
absent an explicit authorization from the legislature. Finding no
error, we affirm the decision of the trial court.
FACTS
On June 2, 1993, DEQ issued a solid waste facility permit to
BFI to construct and operate a landfill in King and Queen County.
Residents appealed the decision to issue the permit to the circuit
court. On May 30, 1995, the circuit court entered an order
affirming the decision by DEQ to issue the permit. Residents
1
Residents Involved in Saving the Environment, Inc. is an
organization of persons residing and/or owning property near a
landfill site in King and Queen County.
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appealed the circuit court decision to this Court. We reversed
the circuit court's decision in Residents Involved in Saving the
Env't, Inc. v. Commonwealth, 22 Va. App. 532, 471 S.E.2d 796
(1996), aff'd in part, vacated in part, remanded in part,
Browning-Ferris Indus. v. Residents Involved in Saving the Env't,
Inc., 254 Va. 278, 492 S.E.2d 431 (1997). We held that DEQ failed
to make "an explicit determination of 'no substantial present or
potential danger to human health or the environment'" as required
by Code § 10.1-1408.1(D). Id. at 545, 471 S.E.2d at 803 (citation
omitted). We remanded the case to the circuit court for remand to
DEQ to make the required statutory determination.
BFI and DEQ appealed our decision to the Supreme Court of
Virginia. The Supreme Court remanded the case to the circuit
court with instructions to remand the matter to DEQ for the
Director to "consider the existing record and make the required
statutory determination before issuing a new permit in this case."
Browning-Ferris Indus., 254 Va. at 285, 492 S.E.2d at 435.
The circuit court entered an order on December 10, 1997,
remanding the matter to DEQ and ordering the Director to consider
the existing record and to "make an explicit determination"
whether the landfill facility "poses a substantial present, or
potential danger to human health or environment" pursuant to Code
§ 10.1-1408.1(D). The trial court also ordered that the
determination be made "with a degree of particularity that
demonstrates a substantive consideration of the statutory factors
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of Code § 10.1-1408.1(D)." The December 10, 1997 order "suspended
and set aside" the decision to issue the solid waste facility
permit.
On December 17, 1997 the Director wrote a letter to BFI
stating his decision to issue the proposed permit. The Director
determined the proposed permit included conditions necessary to
comply with the applicable statutes and regulations. He further
found the proposed permit "poses no substantial present or
potential danger to human health or the environment." The
Director stated he considered the following information in making
his decision:
[T]he record already prepared in this
matter, including the Virginia Waste
Management Act (Code §§ 10.1-1400 et seq.),
the Solid Waste Management Regulations (9
VAC 20-80-10, et seq.), the permit
application, the permit as proposed, the
record of the public hearing held on the
Permit on March 24, 1994, comments by the
local government, public comment on the
proposed permit, and the recommendations and
conclusions of [DEQ]'s staff in response to
public comment and to data submitted in
support of the Permit application.
The Director also incorporated into his finding two documents
that he stated "further elaborate on the safeguards that serve to
protect human health and the environment from potential threats
posed by the improper disposal of waste." The documents included
the requirements imposed by the Solid Waste Management Regulations
and "the public comment response document," which contained DEQ's
responses to concerns raised during the public comment period.
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On February 19, 1998, Residents appealed the Director's
decision to issue the permit to the City of Richmond Circuit
Court. The City of Richmond Circuit Court transferred venue to
King and Queen County Circuit Court. DEQ and BFI filed demurrers
to the petition. Residents filed numerous motions, including a
motion for leave to file an amended petition for appeal, which the
trial court granted on May 26, 1999. The trial court also granted
the demurrers of BFI and DEQ to Counts II through VII of the
amended petition for appeal and dismissed those counts.
On November 9, 1999, the trial court heard arguments on
cross-motions for summary judgment concerning the remaining Count
I. This count raised the issue of whether the Director failed to
comply with the mandates of the Supreme Court and the trial court
in issuing the permit on December 17, 1997. The trial court
affirmed the Director's decision to issue the permit and dismissed
Count I by order entered on December 3, 1999. This appeal
followed.
ANALYSIS
I. Code § 10.1-1408.1(D)
Residents argues the Director failed to comply with Code
§ 10.1-1408.1(D), the decisions of this Court and the Supreme
Court, and the mandate of the circuit court when issuing the
permit.
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Former Code § 10.1-1408.1(D) provided in part:
No 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. 2
In Browning-Ferris Indus., the Supreme Court held the
language of former Code § 10.1-1408.1(D) was "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."
Browning-Ferris Indus., 254 Va. at 284, 492 S.E.2d at 435.
The Court further stated:
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 Director's 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
2
The legislature substantially changed the language of Code
§ 10.1-1408.1(D) in 1999, but the changes are not at issue in
this case.
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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.
Id. at 285, 492 S.E.2d at 435.
Residents contends there is no evidence in the record that
the Director ever made an explicit determination or finding that
the facility poses no substantial present or potential danger to
human health and the environment with a degree of particularity
that demonstrates substantial consideration of the statutory
factors as mandated by the courts. Residents further argues
that the Director's December 17, 1997 letter contains "a
conclusional recitation of the statutory language without a
degree of particularity that demonstrates a substantive
consideration of the statutory factors . . . ."
However, as stated above, the Director considered a variety
of information in forming his decision to issue the permit. He
stated in his December 17, 1997 letter that he considered the
record prepared in the matter, the applicable Act and
regulations, the permit application, the record of the public
hearing, the comments made by local government and the public,
and the recommendations of the DEQ staff. Residents asserts
that the record was still in the circuit court when the Director
wrote the December 17, 1997 letter. However, even if we assume
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that is true, the Director could have reviewed DEQ's copy of the
record or could have reviewed the record while it was in the
circuit court. The Director attached to his letter several
documents from the record clearly indicating he had access to
the record in this matter.
Furthermore, the attachments to the letter indicate with
particularity the factors reviewed by the Director in making his
decision. The attachments include the Solid Waste Management
Regulations, which address in detail technical information to be
considered for a permit application, such as hydrogeologic
reports, maps, local government certification, design and
operations plans, distances to surface and groundwater sources,
availability of groundwater monitoring, wetlands, and many other
considerations.
In addition, another attachment, the DEQ staff response to
the public comments received, addressed many environmental
issues raised by the public. These included questions raised
concerning nearby shallow drinking water wells, groundwater
monitoring requirements, the location of the landfill near
Dragon Run, the handling of surface water run-off from the site,
and the detection of landfill liner leaks.
Although Residents argues that the Director's analysis did
not indicate he made the requisite statutory determination with
a degree of particularity demonstrating a substantive
consideration of the statutory factors, the Supreme Court
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specifically stated that "[t]he analysis which the Director
employs in considering the statutory factors is a matter
submitted to his discretion and expertise under the statutory
scheme." Id. The Director specifically addressed in his letter
and in the attached documents the factors and information he
considered in issuing the permit. We find the Director did not
abuse his discretion in the analysis he employed in making the
determination and that his determination was "made with a degree
of particularity that demonstrates a substantive consideration
of the statutory factors." Id. Therefore, we affirm the trial
court's holding that the Director's determination to issue the
permit was supported by the agency file, minutes and record and
was made in compliance with former Code § 10.1-1408.1(D).
II. Trial Court's Dismissal Of Counts II through VII
Residents contends the Director's determination failed to
consider or address concerns related to the siting of the
landfill, wetlands, the presence of archeological and historic
sites at the landfill location, possible groundwater
contamination, and the presence of potential endangered species
on the site.
However, in Residents' first petition for appeal regarding
the permit, which was filed in the trial court in 1993,
Residents raised these same issues. In its opinion letter dated
May 4, 1995, the trial court wrote that Residents raised
"various instances of human health and environmental
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implications surrounding the issuance" of the permit. "These
include: air, dust, gas, the character of the area where the
landfill is located, wildlife, endangered species, surface and
groundwater, water supplies, wetlands, noise, roads and road use
and historic resources and sites." The trial court found that
nothing in the record showed that any regulations that could
address these concerns were not considered in the permitting
process. Residents did not appeal these findings when it
appealed the trial court's decision to affirm the issuance of
the permit in 1995.
[T]he established rule of appellate
procedure in this Commonwealth [is] that if
a matter is appealed and a party fails to
preserve a challenge to an alleged error
made by the trial court by assignment of
error or cross-error, the judgment of the
trial court becomes final as to that issue,
a doctrine commonly referred to as the "law
of the case," and precludes further
litigation of that issue if the case is
remanded to the trial court for further
proceedings by the appellate court.
Commonwealth v. Luzik, 259 Va. 198, 206, 524 S.E.2d 871, 876
(2000). Indeed, at oral argument on April 14, 1999, the trial
court asked Residents' counsel why "these twelve factual issues"
were not raised in the first appeal. In reply, Residents'
counsel conceded that "the court had already ruled that there
was substantial evidence in the record to support a decision on
those issues." Because these issues were decided by the circuit
court in 1995, and Residents chose not to raise the issues in
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its appeal, the "law of the case" doctrine precludes Residents'
attempt to re-litigate these issues at this time.
In Count V, appellant averred that the Director limited his
determination under Code § 10.1-1408.1(D) of substantial present
or potential danger to human health or the environment to the
conditions and requirements of existing solid waste regulations,
but he was required to make the determination "irrespective of
such limitations." To the extent this count raised issues
regarding Code § 10.1-1408.1(D), those issues are addressed
above in Issue I. To the extent Count V raised issues of
whether substantial evidence in the record supported the
Director's decision and raised issues of potential groundwater
and surface water contamination, the question was conclusively
answered by the trial court in 1995. Accordingly, the trial
court did not err in dismissing Counts II through V.
Although Residents states in its second question presented
that the trial court also erred in dismissing Counts VI and VII,
Residents failed to address the dismissal of those two counts in
its brief. "Statements unsupported by argument, authority, or
citations to the record do not merit appellate consideration.
We will not search the record for errors in order to interpret
appellant's contention and correct deficiencies in a brief."
Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239
(1992). Accordingly, we will not address the dismissal of those
counts.
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III. Motions for Summary Judgment
Residents argues the trial court erred in granting summary
judgment in favor of DEQ and BFI because, prior to issuing the
permit, the Director failed to make the "statutorily mandated
explicit finding" pursuant to the opinions of this Court and the
Supreme Court. However, for the reasons stated above, the trial
court did not err in granting the motions for summary judgment.
IV. Amended Petition
DEQ argues the trial court erred in allowing Residents to
file an amended petition stating claims of the trustees of the
church. The right to file an amended pleading rests in the
sound discretion of the trial court, and shall be liberally
granted in furtherance of the ends of justice. See Rule 1:8;
Alphin v. Alphin, 15 Va. App. 395, 400, 424 S.E.2d 572, 575
(1992). The amended petition lists the same appellants as the
original petition with the exception that, in the amended
petition, two persons are named both individually and as
trustees of the church. Therefore, the trial court did not
abuse its discretion in allowing this amendment.
V. Standing
DEQ argues that Residents Corporation and the church lack
standing because (1) Code § 10.1-1457 does not explicitly
provide for representative standing; (2) neither the church nor
Residents Corporation has suffered an "actual or imminent
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injury"; and (3) because the entities are not "person[s]
aggrieved" under Code § 10.1-1457(A).
We find the entities have standing pursuant to Concerned
Taxpayers of Brunswick County v. Dep't of Envtl. Quality, 31 Va.
App. 788, 525 S.E.2d 628 (2000). The church, a legal entity
owning property adjacent to the landfill, alleged that its water
well and cemetery would be affected by the landfill operations.
Residents' members, many of whom are adjacent landowners,
alleged injury to their water supplies and property values as a
result of the operation of the landfill. Therefore, both
entities are "persons aggrieved" by a final decision of the
Director in issuing the permit. See Code § 10.1-1457(A).
The record indicates that members of both the church and
Residents, Inc. participated in the public hearings in the
matter pursuant to Code § 10.1-1457(B). 3 Furthermore, the
3
Code § 10.1-1457(B) provides:
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
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allegations of the entities demonstrated the potential danger to
the environment, human health, and economic interests of the
parties if the permit is not properly issued. Therefore, the
church and Residents, Inc. are subject to "imminent injury"
which is a "concrete and particularized" injury if the permit is
improperly issued. See Concerned Taxpayers, 31 Va. App. at 797,
525 S.E.2d at 632. Moreover, the imminent injury is fairly
traceable to the action of the Director in issuing the permit,
and would likely be redressed by a favorable decision of the
court in assuring the proper permitting procedures pursuant to
Code § 10.1-1408.1(D) are followed. See Code § 10.1-1457(B).
Accordingly, DEQ's standing argument is without merit.
Finally, in the Relief Requested portion of its brief,
Residents requests that we hold it has substantially prevailed
as a matter of law and within the meaning of Code § 9-6.14:21,
and it requests that we instruct the trial court to consider an
award of attorney's fees and costs in accordance with Code
§ 9-6.14:21.
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.
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One of the requirements entitling a party to an award of
attorney's fees under Code § 9-6.14:21 is if "such person
substantially prevails on the merits of the case." Code
§ 9-6.14:21(A). Clearly, Residents did not substantially
prevail on the merits of this case. Therefore, we deny the
request that we instruct the trial court to consider attorney's
fees.
For the reasons stated above, we affirm the decision of the
trial court.
Affirmed.
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