Board of Sup'rs of King and Queen County v. King Land Corp.

• Decision Date: 09 June 1989
• Docket Number: No. 871056,871056
• Parties: BOARD OF SUPERVISORS OF KING AND QUEEN COUNTY v. KING LAND CORPORATION. Record
• Court: Virginia Supreme Court

Page 895

380 S.E.2d 895

238 Va. 97

BOARD OF SUPERVISORS OF KING AND QUEEN COUNTY v. KING LAND CORPORATION.

Record No. 871056.

Supreme Court of Virginia.

June 9, 1989.

L.B. Cann, III (James K. Cluverius; Teresa S. Hanger; Little, Parsley & Cluverius, P.C., on brief), for appellant.

Robert E. Payne (Thomas E. Spahn; McGuire, Woods, Battle & Boothe, on brief), for appellee.

Present: All the Justices.

RUSSELL, Justice.

This appeal questions the correctness of the issuance, by the State Health Commissioner, of a permit to operate a solid waste landfill without requiring proof of financial responsibility pursuant to Code § 32.1-182. The Circuit Court of King and Queen County reversed a decision of the Department of Health. An appeal lay to the Court of Appeals pursuant to Code § 17-116.05(1), which governs appeals from decisions of administrative agencies. The decision of the Court of Appeals is usually final in such cases, Code § 17-116.07(A)(2), but we granted an appeal because the case involves a matter of significant precedential value. Code § 17-116.07(B).

On December 9, 1985, King Land Corporation applied to the Department of Health for a permit which would enable it to operate an industrial landfill in King and Queen County. King Land requested permission to dump 400 tons per day of industrial waste, consisting primarily of ash and asbestos, on a 120-acre site in that county. After investigating the site, the State Health Commissioner issued the requested permit on December 24, 1985. The permit imposed certain conditions on the disposal of waste, e.g., incinerator ash was to be covered with six inches of soil and asbestos was to be covered with twelve inches of soil, but no conditions were imposed to assure the financial responsibility of the applicant.

In 1979, the General Assembly repealed former Title 32 of the Code and added new Title 32.1, captioned "Health." The new title included Chapter 6, captioned "Environmental Health Services." That chapter contained Article 3, captioned "Solid and Hazardous Waste Management" (Code §§ 32.1-177 through 32.1-186). ¹ Code § 32.1-178(10) required the State Board of Health to "[p]romulgate such regulations as may be necessary to carry out its powers and duties and the intent of this article and the federal acts." Code § 32.1-180 provided: "On and after the effective date of regulations promulgated pursuant to this article, which date shall not be less than six months after promulgation, no person shall ... [o]perate any sanitary landfill or other facility for the disposal of solid waste without a permit therefor from the Commissioner." Provision was made, in Code § 32.1-180(D), for continued operation of existing dumps under conditional permits, but such permits would all expire by June 30, 1983.

Code § 32.1-182, the subject of this controversy, provided in pertinent part as follows:

A. The Board shall, no sooner than October one, nineteen hundred eighty-one, promulgate regulations which insure that, in the event that a facility for the disposal of solid waste or a facility in which hazardous waste is stored, treated, or disposed is abandoned, the costs associated with protecting the public health and safety from the consequences of such abandonment may be recovered from the person abandoning the facility.

B. Such regulations may include bonding requirements, the creation of a trust fund to be maintained within the State Health Department, self-insurance, other forms of commercial insurance, or such other mechanism as the Board may deem appropriate. Regulations governing the amount thereof shall take into consideration the potential for contamination and injury by the solid or hazardous waste, the cost of disposal of the solid or hazardous waste and the cost of restoring the facility to a safe condition.

C. No sooner than October one, nineteen hundred eighty, and no later than March one, nineteen hundred eighty-one, the Board shall make available for public hearing and comment an initial draft of such regulations. ²

The statute did not fix a date by which the Board's financial responsibility regulations must be promulgated or become effective. In December 1985, when the permit was issued to King Land in the present case, the Board had not yet promulgated any such regulations, even though five years had elapsed from the legislatively-mandated time when the proposed regulations were to be published for public hearing and comment. Because no such regulations were in effect in 1985, no proof of financial responsibility was required of King Land. ³

The Board of Supervisors of King and Queen County (the "Supervisors"), after learning of the issuance of the permit to King Land, asked the State Board of Health to stay the effectiveness of the permit pending judicial review. The Board refused to do so, although its Director of Solid and Hazardous Waste Management stated that administrative steps had been taken to "prevent any occurrence of this type in any future permit action" by providing for a 30-day notice to the local governments affected and an opportunity for their comment before any future permits would be issued.

King Land began dumping industrial wastes at the site on January 6, 1986. On January 27, 1986, the supervisors filed a bill of complaint in the Circuit Court of King and Queen County, seeking a declaratory judgment, a permanent injunction, and damages. King Land, the State Health Commissioner, the State Board of Health, and others, were named as defendants. On June 23, 1986, the circuit court, Judge G. Duane Holloway presiding, entered summary judgment in favor of the supervisors. The court, noting that the regulations required by Code § 32.1-182 had still not been promulgated even though seven years had elapsed since the statute was enacted, held that the State Health Commissioner had committed an error of law, invalidated the permit, and remanded the case to the State Health Commissioner with direction that no new permit be issued in the case until proper regulations were promulgated and complied with.

King Land appealed to the Court of Appeals. That court, in King Land Corp. v. Board of Supervisors, 4 Va.App. 597, 359 S.E.2d 823 (1987), reversed the circuit court's award of summary judgment. The Court of Appeals held that the absence of an express deadline in Code § 32.1-182(A) showed a clear legislative intent not to fix any time limitation for the promulgation of financial responsibility regulations. Id. at 604, 359 S.E.2d at 826-27. Because the agency already had other regulations in effect, the Court of Appeals held that the permit had been validly issued pursuant to the only regulations which were statutorily mandated at the time. A dissenting judge concluded that the General Assembly intended that financial responsibility regulations be promulgated within a reasonable time after March 1, 1981, that five years was not a reasonable time, and that the agency's failure to comply with the statutory mandate rendered its permit action invalid.

Perhaps the earliest judicial explication of the theory of statutory interpretation known as the "mischief rule," was given in Elizabethan England by the Barons of the Court of Exchequer:

And it was resolved by them, that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law,) four things are to be discerned and considered:

1st. What was the common law before the making of the Act.

2nd. What was the mischief and defect for which the common law did not provide.

3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.

And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.

Heydon's Case, 3 Co. Rep. 7a, 7b, 76 Eng. Rep. 637, 638 (1584). Four centuries later, the "mischief rule" retains its vitality. Our own cases have expressly adopted that approach. N. & W.R.R. Co. v. Prindle and Wife, 82 Va. 122, 130 (1886). Every statute is to be read so as to "promote the ability of the enactment to remedy the mischief at which it is directed." Natrella v. Board of Zoning Appeals, 231 Va. 451, 461, 345 S.E.2d 295, 301 (1986) (quoting Jones v. Conwell, 227 Va. 176, 181, 314 S.E.2d 61, 64 (1984)). The ultimate purpose of all rules of construction is to ascertain the intention of the legislature, which, absent constitutional infirmity, must always prevail. All rules are subservient to that intent. Shackelford v. Shackelford, 181 Va. 869, 877, 27 S.E.2d 354, 358 (1943). Further, it is a universal rule that statutes such as those under consideration here which are remedial in nature, are to be "construed liberally, so as to suppress the mischief and advance the remedy," as the legislature intended. Shumate's Case, 56 Va. (15 Gratt.) 653, 661 (1860) (emphasis added).

We need not look far to discern the mischief the General Assembly sought to suppress by the enactment of Code § 32.1-182. The words of the statute itself evidence a legislative concern with "protecting the public health and safety from the consequences of ... abandonment" of a "facility for the disposal of solid waste." Code § 32.1-182(A). The statute, by the use of the mandatory "shall," requires that the State Board of Health promulgate regulations to "insure that, in the event [such a facility] is abandoned, the costs associated with protecting the public ... may be recovered from the person abandoning the facility." Id. (emphasis added).

The statute was adopted during a period of heightened environmental awareness arising from a series of well-publicized calamities in...