Opinion
UPON REHEARING EN BANC
COLEMAN, J.A divided panel of this Court upheld a ruling of the Circuit Court of the City of Roanoke which declared invalid two of the water control standards which the State Water Control Board (SWCB) attempted to adopt on October 7, 1987, dealing with the discharge of chlorine or other halogen compounds into certain state waters. See Commonwealth ex rel. State Water Control Bd. v. Appalachian Power Co., 9 Va. App. 254, 386 S.E.2d 633 (1989). A majority of the panel upheld the circuit court’s ruling that the standards were invalid because the SWCB, before amending its water quality standards, failed to hold an evidential hearing as required by its basic law, Code §§ 62.1-44.15(3a) and 9-6.14:8. We granted the Commonwealth a rehearing en banc.
Initially, Appalachian Power Co. (APCo) contends that the issue whether the SWCB’s water quality standards were valid is no longer justiciable because the SWCB promulgated new regulations (Virginia Register, Vol. 5, Issue 23, pp. 3535-3538), effective September 13, 1989, which replaced the regulations that APCo was challenging, thereby rendering moot the validity of the former regulations. Also, APCo contends that in 1989 the legislature amended Code § 62.1-44.15(3a), the basic law governing the SWCB, to provide that the SWCB must hold a formal evidential hearing only “upon the request of an affected person or upon its own motion.” Therefore, the issue whether the SWCB was required, or will be required for future regulations, to hold an evi*75dential hearing has been mooted by the amendment.
We hold that the validity of the SWCB’s regulation was not moot for two reasons. First, the issue before the Circuit Court of the City of Roanoke, and before us on appeal, was whether the regulations promulgated October 7, 1987, were valid and thereby restricted the amount of chlorine or other halogen compounds which APCo or others could legally discharge into Virginia waters after that date. The fact that superseding regulations may have been validly adopted on September 13, 1989, does not render moot whether the regulations of September 29, 1987, were valid and whether they controlled the extent of discharge into state waters from the date of enactment until 1989. While emergency standards were promulgated after the circuit court ruled the permanent standards invalid, the validity and applicability of the standards, at least for that period of time before the emergency standards were passed, is a significant and viable issue. Likewise, the 1989 amendment by the legislature to Code § 62.1-44.15(3a), while it may have a bearing upon the construction of the statute, does not render moot the issue whether the SWCB was required to hold an evidential hearing in 1987 in order to have promulgated a valid standard that would regulate those who discharged chlorine into Virginia waters between 1987 and 1989. In summary, the same controversy which existed between the parties throughout this litigation exists now; the validity of the regulations from 1987 through 1989 remains a viable and justiciable issue between the parties. “As long as the parties have a concrete interest in the outcome of the litigation, the case is not moot notwithstanding the size of the dispute.” Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 571 (1984) (citation omitted).
Second, even where parties no longer have a legally cognizable interest in the outcome of the litigation, a court may proceed to adjudicate a controversy under the “capable of repetition, but evading review” exception to the requirements of standing or justiciability. Murphy v. Hunt, 455 U.S. 478, 481-82 (1982).1 Where *76the validity and enforceability of permanent agency regulations have been challenged in the courts, if the agency by enacting an emergency regulation renders moot the question of the validity of the permanent regulation, every challenged regulation which the agency has deemed it necessary to keep in force by emergency measures would be placed beyond review. The validity of all such regulations as they may apply to APCo and to others similarly situated is likely to arise again unless the questions raised by this litigation and the shadow which has been cast over the regulations are addressed and resolved. Thus, we find that a real controversy does exist between the parties to the extent that the validity of the regulation may bear upon pending controversies or enforcement procedures implemented by the SWCB against APCo or others who may have been subject to the regulation by discharging chlorine or halogen compounds into state waters after October 7, 1987. The regulation, if valid, would have been the only applicable and controlling regulation at various times between 1987 and 1989. Accordingly, we hold that the validity of the 1987 regulation is a justiciable issue which was not mooted when the SWCB promulgated its emergency or replacement regulation or by the General Assembly amending Code § 62.1-44.15.
We turn to whether the Circuit Court of the City of Roanoke erred when it ruled that Code §§ 9-6.14:8 and 62.1-44.15(3a) required the SWCB to hold an evidential hearing, even though not requested by an affected party, in order to validly amend its water quality standards. We affirm the judgment of the circuit court for the reasons stated in an opinion by the majority of a panel of this Court in Commonwealth ex rel. State Water Control Board v. Appalachian Power Co., 9 Va. App. 254, 386 S.E.2d 633 (1989). 2
Chief Judge Koontz, joined by Judge Duff, dissents from this holding and would decide that the regulations were validly enacted for those reasons stated in Appalachian Power Co., 9 Va. *77App. at 262, 386 S.E.2d at 637. Judges Benton, Keenan, and Barrow do not reach this issue because they consider it to be a moot proposition.
On this record we find no basis to support a claim by APCo that the SWCB acted unreasonably in attempting to promulgate its water quality standards or in prosecuting its appeals. Accordingly, we deny its request under Code § 9-6.14:21 for costs and attorneys’ fees.
Affirmed.
Baker, J., Moon, J., Cole, J., and Willis, J., concurred.
The validity of regulations from other agencies which must conform with the requirements of Code § 9-6.14:8 and which have provisions in their basic law paralleling Code § 62.1-44.15(3a) may have been called into question by the holding in Commonwealth ex rel. State Water Control Board v. Appalachian Power Co., 9 Va. App. 254, 386 S.E.2d 633 (1989). While other agencies who are not a party to this proceeding and their regulations are not in issue, the SWCB and APCo, as well as other agencies, have a real *76interest in having a resolution of the question because the question is capable of repetition if the panel decision looms unresolved.
The legislature amended Code § 62.1 -44.15(3a) in 1989 by deleting the requirement that the SWCB as part of its triennial review shall “hold hearings as hereinafter provided” by the Administrative Process Act (§ 9-6.14:1 et seq.) and provided that evidential hearings pursuant to § 9-6.14:8 shall be “upon the request of an affected person or upon its [the SWCB’s] own motion.” Thus, under the 1989 amendment, the basic law governing the SWCB does not require an evidential hearing provided by § 9-6.14:8 except upon request or upon its own motion.