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

• Docket Nº: 961462
• Citation: 254 Va. 278, 492 S.E.2d 431
• Case Date: September 12, 1997
• Court: Supreme Court of Virginia

Page 431

492 S.E.2d 431 254 Va. 278 BROWNING-FERRIS INDUSTRIES 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 Nos. 961426, 961462. Supreme Court of Virginia. Sept. 12, 1997.

Page 432

[254 Va. 280] 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.

[254 Va. 278] Present: CARRICO, C.J., COMPTON, STEPHENSON, ¹ HASSELL and KEENAN, JJ., and POFF and WHITING, Senior Justices.

[254 Va. 280] 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 [254 Va. 281] 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

Page 433

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 [254 Va. 282] 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...