AEGIS WASTE SOL. v. CONCERNED TAXPAYERS, Record No. 001350

• Decision Date: 20 April 2001
• Docket Number: Record No. 001350,Record No. 001363.
• Citation: 261 Va. 395,544 S.E.2d 660
• Court: Virginia Supreme Court
• Parties: AEGIS WASTE SOLUTIONS, INC. v. CONCERNED TAXPAYERS OF BRUNSWICK COUNTY, et al. Department of Environmental Quality, et al. v. Concerned Taxpayers of Brunswick County, et al.

544 S.E.2d 660

261 Va. 395

AEGIS WASTE SOLUTIONS, INC. v. CONCERNED TAXPAYERS OF BRUNSWICK COUNTY, et al.

Department of Environmental Quality, et al. v. Concerned Taxpayers of Brunswick County, et al.

Record Nos. 001350, 001363.

Supreme Court of Virginia.

April 20, 2001.

Timothy G. Hayes (Christopher R. Graham, Hunton & Williams, on briefs), Richmond, for appellant in No. 001350.

Chesapeake Bay Foundation, James River Ass'n, Mattaponi-Pamunkey Rivers Ass'n and Sierra Club (Katherine E. Slaughter; Courtney A. Smith; Southern Environmental Law Center, on brief), amici curiae, in support of appellees in No. 001350.

Stewart T. Leeth, Asst. Atty. Gen. (Mark L. Earley, Atty. Gen.; Roger L. Chaffe, Senior Asst. Atty., Gen, on briefs), for appellants in No. 001363.

David S. Bailey, Beaverdam, for appellees.

Present CARRICO, C.J., LACY, HASSELL, KEENAN, and KOONTZ, JJ., POFF and WHITING, Special Justices.

CARRICO, Chief Justice.

These appeals stem from a case governed by the provisions of the Administrative Process Act, Code §§ 9-6.14:1 through -6.14:25 (the APA). In the case, the Virginia Department of Environmental Quality (DEQ) awarded AEGIS Waste Solutions, Inc. (AEGIS) a permit to construct and operate a landfill facility in Brunswick County. DEQ later awarded AEGIS two amendments to the permit.

Concerned Taxpayers of Brunswick County (Concerned Taxpayers), an unincorporated association, and eight of its individual members who own property adjacent to or nearby the landfill (the Property Owners)¹ appealed DEQ's award of the permit and the amendments to the Circuit Court of Brunswick County pursuant to Code § 9-6.14:16, part of the APA.²

The circuit court affirmed the awards. Concerned Taxpayers and the Property Owners then appealed to the Court of Appeals of Virginia. The Court of Appeals reversed the judgment of the circuit court and declared the permit and the amendments void. Concerned Taxpayers of Brunswick County v. Department of Envtl. Quality, 31 Va.App. 788, 805, 525 S.E.2d 628, 636 (2000). We awarded AEGIS and DEQ separate appeals and consolidated them for consideration. When appropriate, we will refer to AEGIS and DEQ collectively as the Proponents and to Concerned Taxpayers and the Property owners as the Opponents.

Code § 10.1-1408.1(B)(1), part of the Virginia Waste Management Act, Code §§ 10.1-1400 through -1457, provides that "[n]o application for a new solid waste management facility permit shall be complete unless it contains," inter alia, "[c]ertification from the governing body of the county, city or town in which the facility is to be located that the location and operation of the facility are consistent with all applicable ordinances." AEGIS's application for a permit contained a certification by an authorized representative of the governing body of Brunswick County that "the proposed location and operation of the facility [were] consistent with all ordinances."

The Opponents contend, however, that DEQ was without authority to consider AEGIS's application for the landfill facility complete or to issue the permit because the application included three parcels of land not then owned by AEGIS and not certified by Brunswick County as required by Code § 10.1-1408.1(B)(1).³ The Opponents also contend that DEQ was without authority to consider and grant amendments to the permit because it included the three non-certified parcels.

The three parcels are identified in the record as Tax Map Parcels 53-143A, 63-33A, and 63-47. The parties refer to the parcels as "the Outparcels." We will employ the same terminology.

The record shows that on September 15, 1993, the Board of Supervisors of Brunswick County granted AEGIS a conditional use permit (CUP) for the landfill facility on a parcel of land estimated to contain 755 acres.⁴ On October 22, 1993, the County issued the certification that the location and operation of the facility were consistent with all ordinances.

As part of the permit process, AEGIS was required to file a notice of intent with DEQ providing, inter alia, the precise location of the proposed facility. On October 27, 1993, AEGIS submitted a notice of intent to DEQ along with site and location maps and the certification of consistency issued by Brunswick County.

DEQ advised AEGIS to submit a "Part A" application, and AEGIS filed such an application on December 6, 1993. The purpose of the Part A application is to provide DEQ with information necessary to determine site suitability. As required, AEGIS furnished a key map and a near-vicinity map with the application. DEQ notified AEGIS on December 21, 1993, that the application appeared to be complete and that a technical review would be made applying detailed "siting criteria."

During the review process, DEQ required AEGIS to file a modified near-vicinity map, and AEGIS filed the modification on March 15, 1994. The Outparcels are marked with an "A" inside a circle on the modified map and are shown as adjacent parcels outside the "proposed site boundary." A note on the map states that "[p]arcels designated by an A [inside a circle] are currently under negotiation for inclusion in the site." On March 25, 1994, DEQ approved the Part A application on condition that "[t]he facility boundary and the maximum extent of the disposal units shall be maintained as shown on the revised Near Vicinity Map, submitted to the Waste Division on March 15, 1994."

AEGIS then submitted a Part B application. The purpose of the Part B application is to provide DEQ with detailed engineering design and operating plans for the proposed facility. When the application is complete, DEQ conducts a technical review of the application, applying design and construction standards.

While the Part B application was being reviewed, AEGIS acquired title to the Outparcels and requested a conditional use permit from Brunswick County authorizing use of the Outparcels in the landfill facility. The County denied the request.

Apparently aware of the denial, in a letter dated October 21, 1994, DEQ reminded AEGIS of the condition attached to the Part A approval which provided that "[t]he facility boundary and the maximum extent of the disposal units shall be maintained as shown on the revised Near Vicinity Map [denoted as Figure 3 in the Part A application], submitted in the Waste Division on March 25, 1994." DEQ indicated that two of the Outparcels, Nos. 63-33A and 63-47, were included as part of the facility boundary in the revised Part B application and would have to be removed to make the boundary consistent with Figure 3.

Later, AEGIS's engineering firm responded to a letter from DEQ dated January 3, 1995, with reference to another drawing, No. 3, styled "Proposed Site Features," that was filed with the Part B application. According to the letter, DEQ had posed this problem:

Parcel 53-43A ... delineated in Figure 3 of the Part A [application] is denoted as an adjacent parcel to the permitted boundary. However, Drawing No. 3 [of the Part B application] includes this parcel in the Part A permitted boundary. Please clarify.

The engineering firm responded that "Drawing No. 3 has been revised to show Parcel 53-143A outside of the Part A permitted boundary." A map marked "Drawing No. 3," apparently the revised version, is contained in the record. It shows all three Outparcels outside the "Part A Permit Boundary."

Upon completion of its review, DEQ prepared a draft permit and held a public hearing in Brunswick County. Following the hearing and the receipt of public comment, DEQ issued Permit No. 583 to AEGIS on April 17, 1995. The permit stated that "[t]he total site property consists of approximately 854 acres." However, the permit also stated that "[t]his landfill will consist of two separate sections for disposal of Industrial waste and Sanitary waste," with the "total allowable disposal acreage determined by the Part A Application approval," consisting of "approximately 82 acres for the Industrial Landfill Area (ILA) and approximately 137 acres for the Sanitary Landfill Area (SLA)."

The Opponents then filed a petition for appeal in the Circuit Court of Brunswick County. While the appeal was pending, AEGIS requested two amendments to the permit. The second request sought "a 141-acre expansion of the solid waste disposal footprint in the sanitary area," but neither amendment involved the Outparcels or effected a change in the permitted boundary of the landfill facility.

However, in comment periods following public hearings on the permit and the amendments, questions were raised about facility boundaries and complaint was made that the original permit included parcels that had not been certified by the governing body of Brunswick County. DEQ responded that "[t]he Part A area does not include [Outparcel] # s 63-33A, 63-47, or 53-143A" and that while AEGIS had acquired the Outparcels since "the time of the initial Part A application the Conditional Use Permit still does not allow the properties to be included in the Part A [permitted] area." DEQ also stated that "[j]ust because a property is shown on a landfill drawing does not necessarily indicate that it is included in the facility plans for landfilling."

Another question raised during the comment periods inquired why the permit states "there are over 800 acres when there are only 755 acres approved in the Brunswick County Conditional Use Permit?" DEQ replied that the "total site property consists of approximately 974 acres." DEQ explained that the 755-acre figure used in the CUP and in the Part A approval was derived from tax maps and deed descriptions and did not include the Outparcels. DEQ stated that "a more recent survey of the properties within the boundaries that were estimated to be 755 acres" revealed that "the actual acreage is 822 acres." DEQ said it was important to note that "waste disposal activities can only take place within the areas designated potential disposal areas," consisting of only...