RISE v. CW, DEQ, DWM

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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