Present: Carrico, C.J., Compton, Stephenson, 1 Hassell, and
Keenan, JJ., and Poff and Whiting, Senior Justices
Browning-Ferris Industries
of South Atlantic, Inc.
v. Record No. 961426 OPINION BY JUSTICE BARBARA MILANO KEENAN
September 12, 1997
Residents Involved in Saving
the Environment, Inc., et al.
Commonwealth of Virginia Department
of Environmental Quality, et al.
v. Record No. 961462
Residents Involved in Saving
the Environment, Inc., et al.
FROM THE COURT OF APPEALS OF VIRGINIA
The primary issue in this appeal is whether Code § 10.1-
1408.1(D) requires the Director of the Department of
Environmental Quality (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."
The facts in this appeal are not in dispute. In September
1990, Browning-Ferris Industries of South Atlantic, Inc. (BFI)
filed a notice of intent with the Department of Environmental
Quality (the Department), initiating an application for the
construction and operation of a solid waste management facility
in King and Queen County. BFI also filed a certification from
1
Justice Stephenson participated in the hearing and decision
of this case prior to the effective date of his retirement on
July 1, 1997.
the Board of Supervisors of King and Queen County that the
proposed location and operation of the facility complied with all
applicable ordinances. 2
In February 1991, BFI submitted, as part of its permit
application, information concerning the suitability of the site
for the proposed use and the "siting criteria" required by the
Virginia Solid Waste Management Regulations, 9 VAC 20-80-10 to
-790. After the Department approved this part of BFI's
application, BFI submitted further information addressing the
design, construction, and operation of the proposed facility.
The Department's staff made several revisions to BFI's
application. The staff then determined that the revised
application complied with the Solid Waste Management Regulations
and developed a draft permit which was presented for public
hearing and comment. At the conclusion of the hearing and the
two-week comment period, the staff evaluated the public comments
on the proposed facility, revised the draft permit, and
recommended that the Director approve the permit. The Director
then issued a final permit to BFI for the construction,
2
Code § 10.1-1408.1(B)(1) requires that an application for a
sanitary landfill permit contain a certification from the local
governing body where the proposed facility is to be built that
the location and operation of the proposed facility are
consistent with all applicable ordinances.
2
operation, and maintenance of the solid waste management
facility.
Residents Involved in Saving the Environment, Inc., an
organization of persons residing or owning property near the
proposed landfill site, and others (collectively, the Residents),
appealed the issuance of the permit to the circuit court,
alleging that the Department acted unlawfully in issuing the
permit because the Director failed to make an explicit
determination under Code § 10.1-1408.1(D) that the proposed
facility does not pose a substantial present or potential danger
to human health or the environment.
The Residents contended, among other things, that the permit
was invalid because the Director failed to make the determination
required under Code § 10.1-1408.1(D). The Director conceded that
he did not make an explicit determination to this effect in the
agency record.
The Department moved to dismiss the appeal because the
Residents had not named BFI as a party in the notice of appeal.
The trial court denied the motion based on its determination that
BFI was not a "party" within the meaning of Part 2A of the Rules
of this Court, but granted BFI leave to intervene in the
proceedings.
After conducting a hearing on the merits of the appeal, the
trial court ruled that Code § 10.1-1408.1(D) does not require the
Director to conduct an independent investigation and make any
3
explicit findings before issuing a permit for a solid waste
management facility. The trial court noted that the Residents
did not allege the Department had failed to comply with any other
statute or regulation governing the permit process. Thus, on its
examination of the record, the trial court concluded that the
Department had complied with applicable law and affirmed the
Department's decision to issue the permit.
The Residents appealed the trial court's judgment to the
Court of Appeals, which upheld the trial court’s denial of the
Department's motion to dismiss on the ground that BFI was not a
"party," as that term is defined and used in Part 2A of the Rules
of this Court. Residents Involved in Saving the Environment,
Inc. v. Dep't of Envtl. Quality, 22 Va. App. 532, 538, 471 S.E.2d
796, 800 (1996). The Court further held that BFI was not a
"necessary party" to the appeal under the Administrative Process
Act (APA), Code §§ 9-6.14:1 to -.25:3. Id. at 539, 471 S.E.2d at
800.
However, the Court of Appeals reversed the trial court's
ruling that the Director had complied with Code § 10.1-1408.1(D),
holding that the statute requires the Director to make an
"explicit determination" that the proposed facility does not pose
a significant present or future health or environmental risk.
Id. at 545, 471 S.E.2d at 803. The Court remanded the case to
the trial court with instructions to remand the proceeding to the
Department for the Director to consider the existing record and
4
make the required determination. The Department and BFI both
appealed from the Court of Appeals' judgment, and we consolidated
the cases in this appeal.
The Department first argues that a party who challenges the
issuance of a permit is required to join the permit holder as a
party to the appeal. Thus, the Department contends that the
Residents' appeal to the circuit court should have been dismissed
because they failed to name BFI as a party to the appeal.
We agree that BFI was a necessary party to the Residents'
appeal from the Department's ruling, because that ruling
conferred specific rights on BFI which could be defeated or
diminished by the Residents' appeal. See Asch v. Friends of the
Community of the Mt. Vernon Yacht Club, 251 Va. 89, 90-91, 465
S.E.2d 817, 818 (1996); 1 Frank E. Cooper, State Administrative
Law 325 (1965). However, we take no action on the merits of the
circuit court's denial of the motion to dismiss, because BFI's
intervention in the appeal rendered the issue moot. See
Commonwealth v. Allstate Bonding Co., 246 Va. 189, 190 n.1, 435
S.E.2d 396, 397 n.1 (1993); Hallmark Personnel Agency v. Jones,
207 Va. 968, 971, 154 S.E.2d 5, 7 (1967). Therefore, we will
vacate the part of the Court of Appeals' judgment addressing this
issue.
We next consider the issue whether Code § 10.1-1408.1(D)
requires the Director, before issuing a permit for a new solid
waste management facility, to make an explicit determination that
5
the proposed facility does not pose a substantial present or
potential danger to human health or the environment. 3 None of
the parties contends that Code § 10.1-1408.1(D) is ambiguous.
However, the Department and BFI assign the statutory language a
different meaning than the interpretation urged by the Residents.
The Department and BFI argue that an explicit determination
is not required by Code § 10.1-1408.1(D), that the Director made
an implicit determination pursuant to the statute when he issued
the permit, and that the Director's decision is supported by the
agency record. The Department and BFI further assert that, if
the legislature had intended the Director to make an explicit
determination of this nature, the legislature would have included
such a requirement in the statute, as it has done in other APA
provisions.
In response, the Residents assert that Code § 10.1-1408.1(D)
requires the Director to make such an explicit determination.
3
As a preliminary matter, the Department asserts that this
issue is procedurally barred because the Residents failed to
raise the issue before the circuit court. We disagree and
conclude that the issue was encompassed within the Residents’
allegation that the Director failed to comply with the express
statutory requirements concerning his duty to investigate and
evaluate whether the facility poses any substantial present or
future danger to human health or the environment.
6
The Residents contend that the Director's failure to make that
explicit determination invalidates his issuance of the permit.
We agree with the Residents.
Under the Virginia Waste Management Act (the Act), Code
§§ 10.1-1400 to -1457, the Director of the Department is
responsible for determining whether a proposal for a new solid
waste management facility complies with the Act's provisions.
Code §§ 10.1-1183, -1185, -1408.1(D); Concerned Taxpayers of
Brunswick County v. County of Brunswick, 249 Va. 320, 328, 455
S.E.2d 712, 716 (1995). An appeal from the Director's decision
to issue a permit is governed by the APA which allows the
reviewing court to consider, among other things, the issue
whether the decision was made in compliance with statutory
authority. See Code § 9-6.14:17(ii). The reviewing court may
set the agency action aside, even if it is supported by
substantial evidence, if the court's review discloses that the
agency failed to comply with a substantive statutory directive.
See Environmental Defense Fund, Inc. v. Virginia State Water
Control Bd., 15 Va. App. 271, 278, 422 S.E.2d 608, 612 (1992).
Since the issue before us is purely one of law, containing
no underlying factual issues, we do not apply a presumption of
official regularity or take account of the experience and
specialized competence of the administrative agency. See
Virginia ABC Comm'n v. York Street Inn, Inc., 220 Va. 310, 313,
257 S.E.2d 851, 853 (1979). These considerations apply to the
7
review of mixed questions of law and fact, and to the review of
purely factual issues. See Code § 9-6.14:17(ii); York Street
Inn, Inc., 220 Va. at 313, 257 S.E.2d at 853.
In construing Code § 10.1-1408.1(D), we look first to the
language of the statute to determine whether the language is
clear and unambiguous. If the language is clear and unambiguous,
we will assign the statute its plain meaning. Abbott v. Willey,
253 Va. 88, 91, 479 S.E.2d 528, 530 (1997); Wall v. Fairfax
County Sch. Bd., 252 Va. 156, 159, 475 S.E.2d 803, 805 (1996);
Loudoun County Dep't. of Social Services v. Etzold, 245 Va. 80,
85, 425 S.E.2d 800, 802 (1993).
Code § 10.1-1408.1(D) provides, in relevant part, that
[n]o 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.
We hold that this language is 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. Id.
This requirement is part of the statutory scheme established
by the General Assembly to protect the Commonwealth's
environment, thereby promoting the health and well-being of her
citizens. See Code § 10.1-1183. As a substantive safeguard
which completes the permit review process, the Director's
8
determination constitutes a crucial element of this statutory
scheme. Therefore, we reject the argument effectively advanced
by the Department and BFI that we should assume, rather than
require proof of, the Director's compliance with Code § 10.1-
1408.1(D).
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 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.
Finally, we disagree with BFI's assertion that the
Director's failure to make an explicit determination in this case
was harmless error under Code § 9-6.14:17(iii). That provision
subjects the failure to comply with required procedures to a
9
harmless error analysis. Here, however, the statutory compliance
issue involves a substantive provision which is a prerequisite to
the issuance of a permit. Thus, the Director's action is not
subject to harmless error review. See Code § 9-6.14:17(ii).
For these reasons, we will affirm in part, and vacate in
part, the judgment of the Court of Appeals and remand the case to
the trial court with instructions to remand the matter to the
Department for the Director to consider the existing record and
make the required statutory determination before issuing a new
permit in this case.
Affirmed in part,
vacated in part,
and remanded.
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