Browning-Ferris Industries v. Residents Involved in Saving the Environment, Inc., BROWNING-FERRIS

Decision Date12 September 1997
Docket Number961462,Nos. 961426,BROWNING-FERRIS,s. 961426
Citation254 Va. 278,492 S.E.2d 431
CourtVirginia Supreme Court
PartiesINDUSTRIES OF SOUTH ATLANTIC, INC. v. RESIDENTS INVOLVED IN SAVING THE ENVIRONMENT, INC., et al. COMMONWEALTH of Virginia DEPARTMENT OF ENVIRONMENTAL QUALITY, et al. v. RESIDENTS INVOLVED IN SAVING THE ENVIRONMENT, INC., et al. Record

Timothy G. Hayes (Hunton & Williams, on briefs), Richmond, for appellant.

Clarence M. Dunnaville, Jr. (Henry L. Marsh, III: Ephfrom R. Walker, III; David S. Bailey; Hill, Tucker & Marsh, on brief), Richmond, for appellee.

Present: CARRICO, C.J., COMPTON, STEPHENSON, 1 HASSELL and KEENAN, JJ., and POFF and WHITING, Senior Justices.

KEENAN, Justice.

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 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, 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 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 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 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. 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...

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