May Department Stores Co. v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Elder
Argued at Richmond, Virginia

MAY DEPARTMENT STORES COMPANY
OPINION BY
v. Record No. 0820-98-2 JUDGE LARRY G. ELDER
APRIL 27, 1999
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF ENVIRONMENTAL QUALITY
AND DENNIS H. TREACY, DIRECTOR

FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge

John S. Hahn (Monica S. Desai; William C.
Wood; Michael S. Ewing; Sonnenschein, Nath &
Rosenthal; Rawlings & Wood, on briefs), for
appellant.

John R. Butcher, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

The May Department Stores Company (appellant) appeals a

decision of the circuit court dismissing its administrative

appeal of a decision by the Commonwealth’s Department of

Environmental Quality (DEQ). Appellant had sought reimbursement

from the Petroleum Storage Tank Fund (Tank Fund) 1 for certain

environmental clean-up efforts. Upon DEQ’s denial of its

1
Code §§ 62.1-44.34:10 through 62.1-44.34:13 govern the
establishment and administration of the Tank Fund under the
direction of the State Water Control Board (Board). DEQ is
empowered to implement regulations of the Board and administer
funds appropriated to it. See Code §§ 10.1-1185, 10.1-1186.
request, appellant appealed to the circuit court pursuant to the

Virginia Administrative Process Act (VAPA), Code §§ 9-6.14:1

through 9-6.14:25, but the circuit court ruled appellant “ha[d]

no right of appeal of the reimbursement decision” and dismissed

the appeal. The sole issue for our review is whether the VAPA

provides appellant a right of appeal to the circuit court from

DEQ’s denial of its request for reimbursement from the Tank

Fund. We hold that it does, and we remand the case to the

circuit court for further proceedings.

The law at issue here, the State Water Control Law,

codified at Title 62.1, Chapter 3.1, expressly permits judicial

review under the VAPA of any regulation promulgated by the State

Water Control Board (Board). See Code § 62.1-44.24. The State

Water Control Law also provides expressly for judicial review of

certain decisions made pursuant to Articles 2, 3 and 4 of that

law:

Any owner aggrieved by, or any person
who has participated . . . in the public
comment process related to, a final decision
of the [State Water Control] Board under
§§ 62.1-44.15(5), 62.1-44.15 (8a), (8b), and
(8c), 62.1-44.16, 62.1-44.17, 62.1-44.19 or
§ 62.1-44.25, whether such decision is
affirmative or negative, is entitled to
judicial review thereof in accordance with
the provisions of the Administrative Process
Act . . . if such person meets the standard
for obtaining judicial review of a case or
controversy pursuant to Article III of the
United States Constitution.

- 2 -
Code § 62.1-44.29 (art. 5). The cited code sections all relate

to the Board’s authority to issue certificates allowing the

discharge of certain waste products and the right of “[a]ny

owner aggrieved by, or any person who has participated . . . in

the public comment process related to,” certain decisions

regarding issuance of such certificates to petition the Board

for a hearing. Article 11 of the State Water Control Law, which

governs the Board’s regulation of the discharge of oil into

waters of the Commonwealth, contains a provision stating that

the VAPA shall govern the Board’s activities and proceedings but

expressly limits them to proceedings “under this article.” Code

§ 62.1-44.34:22. Although the statutes governing the Tank Fund

also are contained in this chapter, in Article 10, they make no

mention of judicial review or the VAPA.

The law, therefore, provides expressly that appeals from

certain regulations and decisions of the Board shall be governed

by the VAPA, see Code §§ 62.1-44.24, 62.1-44.29, 62.1-44.34:24,

but it does not indicate whether, or under what conditions,

appeals may be taken from other actions of the Board, such as

decisions made regarding the Tank Fund. DEQ contends that only

those decisions of the Board listed in the State Water Control

Law’s specific appeals provision, Code § 62.1-44.29, are

appealable under the VAPA. Appellant contends that DEQ’s

position would render the VAPA’s provisions virtually

meaningless and that the VAPA must, therefore, govern agency

- 3 -
action even where the agency’s basic law does not expressly so

state, as long as such application is not expressly excluded.

To ascertain whether agency actions pursuant to the Tank Fund

are subject to judicial review, we examine the purpose and

provisions of the VAPA.

We previously have observed that “the General Assembly has

chosen to waive explicitly the sovereign immunity of agencies in

general . . . for certain suits brought pursuant to the [VAPA]

. . . .” Virginia Bd. of Med. v. Virginia Physical Therapy

Assoc., 13 Va. App. 458, 465, 413 S.E.2d 59, 63-64 (1991),

aff’d, 245 Va. 125, 427 S.E.2d 183 (1993). The VAPA provides

for judicial review of rules and regulations promulgated, and

case decisions issued, by administrative agencies. See Code

§§ 9-6.14:3, 9-6.14:16. Its purpose is “to supplement present

and future basic laws 2 conferring authority on agencies either to

make regulations or decide cases as well as to standardize court

review thereof save as laws hereafter enacted may otherwise

expressly provide.” Code § 9-6.14:3 (footnote added). The VAPA

“does not supersede or repeal additional procedural requirements

in such basic laws,” id., and it expressly exempts certain

2
The VAPA defines “basic laws” as the “provisions of the
Constitution and statutes of the Commonwealth of Virginia
authorizing an agency to make regulations or decide cases or
containing procedural requirements therefor.” Code § 9-6.14:4.

- 4 -
agencies and agency actions from its provisions, see Code

§ 9-6.14:4.1.

Thus, the VAPA is intended to be a default
or catch-all source of administrative due
process, applicable whenever the basic law
fails to provide process. In summary, the
VAPA governs an agency’s actions except
where that agency’s basic law provides its
own due process or where the VAPA expressly
exempts a particular agency or its actions.

School Bd. v. Nicely, 12 Va. App. 1051, 1060, 408 S.E.2d 545,

550 (1991) (citation omitted). We interpret these statements to

mean that where an agency’s basic law provides expressly for

VAPA coverage of certain proceedings under specified conditions

and makes no provision for judicial review of other proceedings,

the unmentioned proceedings are subject to the VAPA unless

otherwise expressly excluded. Compare id. at 1058-61, 408

S.E.2d at 549-50 (holding that where basic law provides right of

judicial review but does not specify statute of limitations,

judicial review provisions satisfy due process and VAPA’s

statute of limitations does not apply); Environmental Defense

Fund v. State Water Control Bd., 12 Va. App. 456, 462, 404

S.E.2d 728, 731 (1991) (holding that appeal of Board decision

rendered under earlier version of Code § 62.1-44.29 was governed

by the specific standing requirement of that provision rather

than the more general standing provision of the VAPA’s Code

§ 9-6.14:16).

- 5 -
 Here, in keeping with these principles, a careful analysis

of the VAPA’s exclusion provisions leads us to conclude that the

General Assembly intended to permit judicial review of decisions

of the Board in administering the Tank Fund. As outlined above,

the VAPA lists certain “agency actions otherwise subject to [the

VAPA] . . . [which] are excluded from the operation of Article 2

[of the VAPA].” Code § 9-6.13:4.1(C). Among those actions

excluded are those involving “[g]eneral permits issued by the

State Water Control Board pursuant to the State Water Control

Law (§ 62.1-44.2 et seq.), Chapter 24 (§ 62.1-242 et seq.) of

Title 62.1 and Chapter 25 (§ 62.1-254 et seq.) of Title 62.1 if

the Board [satisfies certain notice, comment and hearing

requirements].” Code § 9-6.14:4.1(C)(12). This code section

specifically indicates that the provisions it excludes from the

operation of Article 2 are those which would “otherwise [be

fully] subject to [the VAPA].” Id. (emphasis added).

Under DEQ’s theory, the only portions of the State Water

Control Law that are subject to the VAPA are those specifically

listed in the State Water Controls Law’s Code § 62.1-44.29.

However, none of the statutes listed in § 62.1-44.29 involves

the “[g]eneral permits” referred to in the VAPA’s exclusion

provisions; instead, the statutes listed in § 62.1-44.29 involve

certificates. Other sections of the State Water Control Law,

however, do provide for the issuance of general permits. See

Code § 62.1-44.15:5.2 (“General permits for ready-mix concrete

- 6 -
plant discharges”); Code § 62.1-44.17:1 (“General permits for

confined animal feeding operations”). To hold that the VAPA

does not apply to these general permit statutes would render

meaningless the portion of the VAPA’s Code § 9-6.14:4.1(C)(12)

referring to “[g]eneral permits issued by the State Water

Control Board pursuant to the State Water Control Law

(§ 62.1-44.2 et seq.).” Therefore, absent application of the

exclusion in Code § 9-6.14:4.1(C)(12), these general permit

statutes would be fully covered by the provisions of the VAPA.

Nothing in the VAPA or the State Water Control Law

specifically lists these general permit statutes as subject to

appeal under the VAPA. Therefore, any agency action rendered

under the State Water Control Law must be subject to appeal

under the VAPA if the action otherwise meets the VAPA’s criteria

for judicial review and is not subject to any other statutory

exclusion. 3

3
DEQ also points to the General Assembly’s 1986 amendment of
Code § 9-6.14:16 to remove language in the VAPA which had
provided a right of appeal under the VAPA in the absence of a
right in the basic law. We rejected this analysis in Nicely, in
which we held as follows:

[T]he revision merely changed the form of
the statute rather than its substance since
the revision simply deleted superfluous
language whose import is embodied in Code
§ 9-6.14:3, which states the VAPA’s purpose.
The substance of the deleted language was
that if a basic law does not create process
for aggrieved persons to appeal agency
decisions, the VAPA process for court review
is applicable. In other words, the VAPA

- 7 -
 The fact that Code § 62.1-44.29 specifically mentions

judicial review of Board decisions rendered under only a limited

number of statutes does not compel the conclusion that the

General Assembly intended only those decisions to be reviewable.

Rather, that code section sets out a test different from the

VAPA’s for determining who has standing to seek review of such

decisions. Code § 62.1-44.29 provides that an “owner aggrieved

by, or any person who has participated . . . in the public

comment process related to,” a decision rendered under one of

the enumerated statutes is entitled to review under the VAPA if

the “person meets the standard for obtaining judicial review of

a case or controversy pursuant to Article III of the United

States Constitution.” That standard requires proof that

(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.

Id.

The VAPA, by contrast, provides a right of review to “[a]ny

person affected by and claiming the unlawfulness of any

supplements a basic law that lacks process
for review of agency decisions. See Code
§ 9-6.14:3.

12 Va. App. at 1060, 408 S.E.2d at 550.

- 8 -
regulation, or party aggrieved by and claiming unlawfulness of a

case decision.” Code § 9-6.14:16 (emphases added). “Case

decision” is defined as

any agency proceeding or determination that,
under laws or regulations at the time, a
named party as a matter of past or present
fact, or of threatened or contemplated
private action, either is, is not, or may or
may not be (i) in violation of such law or
regulation or (ii) in compliance with any
existing requirement for obtaining or
retaining a license or other right or
benefit.

Code § 9-6.14:4. A comparison of these provisions reveals that

the requirements for judicial review of agency decisions

specified in Code § 62.1-44.29 are more stringent than those

under the VAPA. See Environmental Defense Fund, 12 Va. App. at

462, 404 S.E.2d at 731 (noting that “‘owner aggrieved’

requirement [in earlier version of Code § 62.1-44.29] is a more

restrictive standard than ‘person affected’ or ‘party aggrieved’

[in Code § 9-6.14:16]”); see also Town of Fries v. State Water

Control Bd., 13 Va. App. 213, 217-18, 409 S.E.2d 634, 637 (1991)

(applying “owner aggrieved” provision of earlier version of Code

§ 62.1-44.29 to determine standing).

DEQ concedes that appellant’s appeal, if covered by the

VAPA, is a case decision under the above definition. It

contends, however, that the remedy appellant seeks nevertheless

exempts it from the scope of the Act, which prohibits “[a]gency

action relating to [1] [m]oney or damage claims against the

- 9 -
Commonwealth or agencies thereof” and “[4] [g]rants of state or

federal funds or property.” Code § 9-6.14:4.1(B)(1), (4). We

disagree.

Monies held in the Tank Fund originate from expenses and

penalties recovered pursuant to various provisions of state and

federal law, fees levied on fuel sold, delivered and used in the

Commonwealth, and interest earned on monies in the Fund. See

Code §§ 62.1-44.34:11, 62.1-44.34:13. Code § 62.1-44.34:11 uses

the terms “[d]isbursements” and “reimbursements”

interchangeably. It provides that “[d]isbursements” from the

Tank Fund may be made for certain “[r]easonable and necessary

per occurrence costs incurred . . . [for] corrective action,”

“containment and cleanup,” see Code § 62.1-44.34:11(A)(2)

(emphasis added), but it specifically limits “funds . . . paid

for reimbursement of costs incurred for corrective action or

containment and cleanup” under certain circumstances, see Code

§ 62.1-44.34:11(A)(3), (4), (5), (7) (emphasis added), and it

provides that “[n]o funds shall be paid from the Fund unless a

reimbursement claim has been filed” within a specified time

period, see Code § 62.1-44.34:11(A)(10) (emphasis added).

We hold that reimbursements from the Fund are neither

“money or damage claims” nor “grants” under the VAPA. Money

claims are “claims [for which] money is directly payable on

contract express or implied,” such as “claims for the price of

goods sold, for money lent, [or] for arrears in rent.” Black’s

- 10 -
Law Dictionary 1005 (6th ed. 1990). Because no express or

implied contract for payment existed between appellant and DEQ

or the Board, appellant’s request for reimbursement is not a

“money claim” under the VAPA. 4

Appellant’s request for reimbursement also is not a “damage

claim” under the VAPA. “Damages” are defined as “[a] pecuniary

compensation or indemnity, which may be recovered in the courts

by any person who has suffered a loss, detriment, or injury,

whether to his person, property, or rights, through the unlawful

act or omission or negligence of another. A sum of money

awarded to a person injured by the tort of another.” Id. at

389; see Lumberman’s Mut. Cas. Co. v. Keller, 249 Va. 458, 461,

456 S.E.2d 525, 526 (1995). Appellant’s request for

reimbursement from the Tank Fund as provided by statute for

costs appellant allegedly incurred in taking corrective

4
Although the Commonwealth is not subject to suit for money
claims under the VAPA, the Supreme Court has held that it may be
held liable “upon valid contracts entered into by duly
authorized agents of the government” and may not assert the
defense of sovereign immunity in such cases. See Wiecking v.
Allied Medical Supply Corp., 239 Va. 548, 551-53, 391 S.E.2d
258, 260-61 (1990). The legislature has provided a procedure
elsewhere in the Code for bringing money or contract claims
against the Commonwealth. See, e.g., Code § 2.1-223.1
(providing for presentation of pecuniary claim against the
Commonwealth to head of department or agency responsible for
alleged act or omission supporting claim); Code § 8.01-192
(providing for review in circuit court of claims disallowed
under Code § 2.1-223.1 and other sections); see also Wiecking,
239 Va. at 552, 391 S.E.2d at 261. Therefore, even if
appellant's request for reimbursement were classified as a money
claim, appellant would not necessarily be without a remedy.

- 11 -
environmental clean-up action is not a damage claim under this

definition. Appellant did not seek any damages flowing from

DEQ’s allegedly wrongful or tortious action. Appellant did not

seek any damages flowing from DEQ’s allegedly wrongful or

tortious action in denying the reimbursement request, but only

the reimbursement itself. Therefore, the request does not

constitute a damage claim.

Finally, appellant’s request for reimbursement is not a

request for a “grant,” as that term is used in the VAPA. A

grant is defined as money or property gifted, bestowed or

conferred on another, with or without compensation. See Black’s

Law Dictionary 699. DEQ urges us to construe the word “grant”

to include a reimbursement from the Tank Fund. However,

“[where] the intention of the legislature is perfectly clear

from the language used [in a statute], rules of construction are

not to be applied. We are not allowed to construe that which

has no need of construction.” Temple v. City of Petersburg, 182

Va. 418, 422-23, 29 S.E.2d 357, 358 (1944). We find that the

word “grant” as used in the VAPA requires no construction

because the legislature’s use of this term in the State Water

Control Law makes clear that it does not include Tank Fund

reimbursements.

The legislature expressly included the term “grant” in Code

§ 62.1-230, a provision of the State Water Control Law which

permits the Board, “in its discretion,” to approve the use of

- 12 -
money from the Virginia Water Facilities Revolving Fund “to make

grants or appropriations to local governments.” The legislature

demonstrated clearly in Code § 62.1-230 that it knew how to use

the term “grant” to describe a discretionary gift or award of

money, and it did not use this term in describing the Board’s

authority to make payments from the Tank Fund, which it referred

to as reimbursements rather than grants. Therefore, the funds

appellant seeks in this proceeding do not constitute a grant

under the VAPA.

For these reasons, we hold that the VAPA provides a right

to judicial review of DEQ’s denial of a request for

reimbursement under the Tank Fund. Therefore, we remand this

matter to the circuit court for further proceedings consistent

with this opinion.

Reversed and remanded.

- 13 -