R.I.S.E. v. Commonwealth/D of Environ Qual

Court of Appeals of Virginia

R.I.S.E. v. Commonwealth/D of Environ Qual

DecidedJune 18, 1996

Docket1407952

StatusPublished

This text of R.I.S.E. v. Commonwealth/D of Environ Qual (R.I.S.E. v. Commonwealth/D of Environ Qual) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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R.I.S.E. v. Commonwealth/D of Environ Qual, (Va. Ct. App. 1996).

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Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Fitzpatrick Argued at Richmond, Virginia

RESIDENTS INVOLVED IN SAVING THE ENVIRONMENT, INC., ET AL.

v. Record No. 1407-95-2 OPINION BY JUDGE JOHANNA L. FITZPATRICK COMMONWEALTH OF VIRGINIA/ JUNE 18, 1996 DEPARTMENT OF ENVIRONMENTAL QUALITY AND PETER W. SCHMIDT, DIRECTOR

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Melvin R. Hughes, Jr., Judge

Clarence M. Dunnaville, Jr. (Henry L. Marsh, III; Harold M. Marsh; David S. Bailey; Hill, Tucker & Marsh, on briefs), for appellants.

Deborah Love Feild, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellees.

Timothy G. Hayes (Clayton L. Walton; Williams, Mullins, Christian & Dobbins, on brief), for intervener Browning-Ferris Industries of South Atlantic, Inc.

Residents Involved in Saving the Environment, Inc. 1 (Residents) appeal the circuit court's decision affirming the Department of Environmental Quality's (the Department) issuance

of a sanitary landfill permit to Browning-Ferris Industries of

South Atlantic, Inc. (BFI). Residents argue that the Director of

the Department (Director) violated Code § 10.1-1408.1(D) by 1 Residents Involved in Saving the Environment, Inc. is an organization of persons residing and/or owning property near the proposed landfill site in King and Queen County, Virginia. Other appellants include several named individuals, a church, and a farming corporation. issuing the permit without making the required, specific

determination that the proposed facility posed "no substantial

present or potential danger to human health or the environment."

The Department asserts that: (1) by issuing the permit, the

Director implicitly made the required determination under Code

§ 10.1-1408.1(D), and (2) because Residents failed to name BFI as

a party in the notice of appeal or to serve it with the petition

for appeal, the appeal should have been dismissed. BFI, as an

intervener, argues that the court erred in denying its motion to

change venue. We affirm the circuit court's decision as to the

Department's motion to dismiss and BFI's motion to change venue.

However, we reverse the circuit court's decision to affirm the

permit's issuance because the record fails to show that the

Director made the required determination under Code § 10.1-1408.1(D). BACKGROUND

On September 18, 1990, BFI filed a notice of intent with the

Department to initiate the application process for a permit to

build a landfill in King and Queen County. 2 BFI also filed a

local certification that the proposed location and operation of

the landfill complied with local ordinances, as required by Code

§ 10.1-1408.1(B)(1). 3 On February 4, 1991, BFI submitted Part A 2 The record in this case consists of a written statement of facts pursuant to Rule 5A:8(c). 3 Code § 10.1-1408.1(B)(1) requires that a permit application contain "[c]ertification from the governing body of the county, city or town in which the facility is to be located that the

2 of its permit application, which contained information concerning

whether the proposed site was suitable for the proposed use and

addressing the siting criteria required by the Virginia Solid

Waste Management Regulations (SWMR). The Department's staff

reviewed Part A and approved it on July 29, 1991. On March 20,

1992, BFI submitted Part B of its application, addressing

facility design, construction, and operation. The Department's

technical staff reviewed Part B, made numerous revisions to the

original proposal, and determined that the application complied

with the SWMR. The Department subsequently prepared a draft permit and held

a public hearing on March 24, 1993, with the public comment

period extended to April 5, 1993. The Department's staff

received comments on the draft permit, made changes based on

these comments before recommending that the Director approve the

permit, and responded in writing to many of the issues raised

during the public comment period. On June 2, 1993, the Director

issued the permit to BFI. Prior to issuing the permit, the

Director made no explicit finding or determination that the

proposed facility posed "no substantial present or potential

danger to human health or the environment," as required by Code

§ 10.1-1408.1(D).

On July 30, 1993, Residents appealed the permit's issuance

location and operation of the facility are consistent with all applicable ordinances."

3 to the Circuit Court for the City of Richmond, arguing that the

Director "failed to investigate whether the construction and/or

operation of the landfill will create an adverse impact or a

present or potential hazard to human health." Residents also

argued that the Director was required to make the specific

determination that the landfill posed no "substantial present or

potential danger to human health or the environment." In their

appeal, Residents named only the Department and the Director as

parties. BFI later intervened in the appeal and moved to

transfer the case to King and Queen County, the preferred venue

under Code § 8.01-261(1). The circuit court denied the motion.

After hearing oral argument on October 20, 1994, the circuit

court issued a letter opinion on May 4, 1995, finding that: (1)

Code § 10.1-1408.1(D) did not impose an independent duty of

investigation on the Director, and (2) the Director's action in

issuing the permit complied "with the applicable regulations or

law governing the concerns the appellant[s] raise[]." NECESSARY PARTIES IN ADMINISTRATIVE APPEALS

The Department argues that the circuit court should have

dismissed Residents' appeal because they failed to name BFI as a

party in the notice of appeal and failed to serve BFI with the

petition for appeal.

In its letter opinion of November 5, 1993, the circuit court

refused to dismiss Residents' appeal and determined that "BFI

[did] not fit the definition of 'party' as used in Rules 2A:2 and

4 2A:4."

Appeals pursuant to the Virginia Administrative Process Act

(VAPA), Code §§ 9-6.14:1 to 9-6.14:25, are governed by Part 2A of

the Rules of the Supreme Court of Virginia. Rule 2A:1(c). Rule

2A:1(b) provides, in pertinent part, as follows: The term "party" means any person affected by and claiming the unlawfulness of a regulation or a party aggrieved who asserts a case decision is unlawful and any other affected person or aggrieved person who appeared in person or by counsel at a hearing, as defined in § 9-6.14:4 E, with respect to the regulation or case decision as well as the agency itself.

(Emphasis added). A "rule" or "regulation" under the VAPA is

"any statement of general application, having the force of law,

affecting the rights or conduct of any person, promulgated by an

agency in accordance with the authority conferred on it by

applicable basic laws." Code § 9-6.14:4(F). In contrast, the

VAPA defines the term "case" or "case decision" as follows: any agency proceeding or determination that, under the 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.

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