Environmental Defense Fund, Inc. v. Virginia State Water Control Bd., 1594-91-2
| Citation | 15 Va.App. 271,422 S.E.2d 608 |
| Decision Date | 20 October 1992 |
| Docket Number | No. 1594-91-2,1594-91-2 |
| Parties | ENVIRONMENTAL DEFENSE FUND, INC., Juan Ramirez, Benjamin H. Rice, M.D. and Joseph W. Lawler v. VIRGINIA STATE WATER CONTROL BOARD, Chesapeake Corporation, Union Camp Corporation and Westvaco Corporation. Record |
| Court | Court of Appeals of Virginia |
David S. Bailey, Richmond, for appellants.
John R. Butcher, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Joseph M. Spivey, III, Manning Gasch, Jr., Brian D. Bertonneau, Hunton & Williams, Richmond, on briefs), for appellees.
Present: BAKER, COLEMAN and BRAY, JJ.
Environmental Defense Fund, Inc., Juan Ramirez, Benjamin H. Rice, M.D., and Joseph W. Lawler (collectively "EDF") appeal an order of the circuit court denying their "Petition for Appeal" of the "Water Quality Standard" (standard) for 2, 3, 7, 8-tetrachlorodibenzo-p-dioxin (dioxin) established by the State Water Control Board (Board). Chesapeake Corporation, Union Camp Corporation and Westvaco Corporation (industry) were granted leave by the trial court to intervene in the proceedings. In adopting the standard, EDF contends the Board "arbitrarily" responded only to economic and technological factors and, thus, violated its "statutory duty" to fix a standard which considered and "protected reasonable public stream uses."
We find no reversible error and affirm the judgment of the trial court.
Code § 62.1-44.2 expresses "the policy of the Commonwealth of Virginia" and the "purpose" of the State Water Control Law 1 to:
(1) protect existing high quality state waters and restore all other state waters to such condition of quality that any such waters will permit all reasonable public uses and will support the propagation and growth of all aquatic life, including game fish, which might reasonably be expected to inhabit them, (2) safeguard the clean waters of the Commonwealth from pollution, (3) prevent any increase in pollution, (4) reduce existing pollution, and (5) promote water resource conservation, management and distribution, and encourage water consumption reduction in order to provide for the health, safety, and welfare of the present and future citizens of the Commonwealth. 2
In furtherance of this policy, it is the "duty" of the Board and it "shall have the authority:"
(3a) To establish ... standards of quality ... for any state waters consistent with the general policy set forth in this chapter ... and to take all appropriate steps to prevent quality alteration contrary to the public interest.... Whenever the Board considers the adoption ... of any standard, it shall give due consideration to, among other factors, the economic and social costs and benefits which can reasonably be expected to obtain as a consequence of the standards....
Such action of the Board is governed procedurally by Code §§ 9-6.14:7.1 and 9-6.14:8 of the Administrative Process Act (Act). See Code § 62.1-44.15(3)(b).
On December 11, 1989, the Board directed its staff to "move to a public hearing" on a "proposed water standard for dioxin" of 1.2 parts per quadrillion (1.2). This action was followed by administrative proceedings and related "public hearings" in accordance with Code § 9-6.14:7.1. The proposal generated much comment from the Environmental Protection Agency (EPA), the Virginia Department of Health (VDH), EDF, industry and others, and the resulting record is voluminous and complex. As a consequence, this opinion recites only those facts necessary to a resolution of the case.
The record discloses that dioxin is an "unavoidable contaminant" produced during certain manufacturing processes. A carcinogen, lethal and injurious to life even in small doses, it was described as "one of the most toxic substances with respect to human health that has been found in the environment known to mankind." Unfortunately, it is presently discharged into the public waters of this Commonwealth, primarily as an "unintended by-product" of paper manufacturing by industry. If not regulated, this activity could expose "the population to additional cancer risks that would be unacceptable ... [to] the State Department of Health."
However, determination of a dioxin exposure level that is tolerable by humans has proven "very difficult." Research with animals has revealed a "marked variation in host sensitivity and susceptibility," with experiments producing results that are sometimes "contradictory." "[D]efinition" of an "acceptable risk level for the general population" was described by the State Health Commissioner as an "enigma" which required a "policy decision" that assured "minimal or insignificant" exposure.
In an effort "to translate choices among dioxin factors into a final standard," the EPA developed a "modeling formula" designed to consider properly these numerous "factors" by numerical weighting. This equation was "accepted by all parties as the best means of predicting an appropriate ... standard," utilized by the Board in this instance, and is as follows:
DIOXIN WATER RISK LEVEL x BODY WEIGHT
QUALITY
STANDARD =
---------------------------------------------------------------
CANCER x (WATER k FISH x BIOCONCENTRATION
POTENCY INTAKE CONSUMPTION FACTOR)
----------
Manifestly, a variation in any component of the formula would alter the result, and the evidence disclosed particular uncertainty and disagreement surrounded the numerically correct "CANCER POTENCY," "RISK LEVEL" and "BIOCONCENTRATION" factors. 3
At its meeting on March 19, 1990, Board staff, EDF and industry representatives addressed the Board on the proposed standard. Following the several presentations, the Board deferred "action" until its May meeting and, on May 14, 1990, approved, without dissent, the originally proposed 1.2 standard. The evidence indicates that this standard would "reduce existing pollution" associated with dioxin discharge. See Code § 62.1-44.2(4).
In selecting the standard, the Board adhered to RISK LEVEL and BIOCONCENTRATION numbers that were within the EPA approved range and applied a CANCER POTENCY estimate described by the federal agency as "within the range of scientific defensibility" and "acceptable." Reduced standards recommended by the VDH, 0.056 parts per quadrillion, and by the EPA, 0.13 parts per quadrillion, resulted from application of more conservative equation components, all of which were also compatible with the EPA scale. Industry supported the 1.2 standard as both scientifically sound and technologically and economically achievable, while EDF regarded the EPA proposal as "the only criteria [sic] that is protective for Virginia waters."
Dissatisfied with the Board's decision, EDF pursued judicial "review" of its action by a "PETITION FOR APPEAL" (petition) filed in the trial court pursuant to the provisions of Code § 9-6.14:16(A). See Code §§ 62.1-44.29, 62.1-44.30, 9-6.14:17. Through several "issues on appeal," EDF argued that the decision resulted from the Board's consideration of only "that standard which was economically and technologically feasible and could be measured by current analytical methods." The result, EDF complained, neither considered nor protected "stream uses, including fish and aquatic life as well as public health" and, as a consequence, violated both "federal and state law." 4 EDF, therefore, urged the trial court to conclude that the Board had "arbitrarily and unreasonably" failed to protect "public health" and "aquatic life" from the "toxic effects of dioxin" and violated "its purpose" and the "intent and policies of the Water Control Law."
The record discloses that the court properly reviewed "this matter on the basis of the agency file, supplemented" by memoranda and argument of counsel. In his initial letter opinion, the trial judge identified the Board's failure "to adopt a dioxin standard which would achieve the purposes of the State Water Control Law" expressed in Code § 62.1-44.2 as the "root" of the EDF challenge. He recognized that the "basic premise" to this contention was the Board's predisposition to a standard that considered only "economic," "social" and "technical" factors, "to the exclusion of stream uses" and other considerations mandated by statute. See Code §§ 62.1-44.2, 62.1-44.15(3a).
In reviewing the Board's action, the trial court considered the entire record, including the scientific and other evidence, as it related to the selected standard. The judge noted that "the determination of the figures to use in each of the factors" was a decision "derived from blends of policy choices ... and ... data" beyond the "competence of the courts," and demanding the "special expertise" of the administrative agency. Thus, the trial court found that the Board's standard was entitled to a "high degree of deference," was "supported by substantial evidence," and was "within the scope of [its] legal authority."
The parameters of judicial review of "agency action" are defined in Code § 9-6.14:17 of the Act. 5 This Court has previously instructed that the "issues of law" specified in the statute "fall into two categories: first, whether the agency ... acted within the scope of [its] authority, and second, whether the decision itself was supported by the evidence." Johnston-Willis Ltd. v. Kenley, 6 Va.App. 231, 242, 369 S.E.2d 1, 7 (1988). Although many circumstances involve "mixed questions" of both "law and fact," issues are sometimes "oversimplified" as "legal" or "factual," a distinction which is significant to judicial review of an administrative decision. See id. at 243, 369 S.E.2d at 7.
It is well established that agency action is presumed valid on review, and the burden rests "upon the party complaining" to overcome this presumption. Code § 9-6.14:17; Commonwealth ex rel. State Water Control Bd. v. Appalachian Power Co., 9...
To continue reading
Request your trial
-
Jones v. West
...to be presumed. In fact, the presumption is that the error was harmless. Code § 2.2-4027; Envtl. Def. Fund v. Virginia State Water Control Bd., 15 Va.App. 271, 277, 422 S.E.2d 608, 611 (1992) ("It is well established that agency action is presumed valid on review, and the burden rests `upon......
-
The Mattaponi Indian Tribe v. Com.
...to discredit agency action that is supported by the record, viewed in context and as a whole." Envtl. Def. Fund v. State Water Control Bd., 15 Va.App. 271, 279, 422 S.E.2d 608, 613 (1992). We focus instead on the decision itself and the entire factual record considered by the agency. Id. By......
-
Friends Buckingham v. State Air Pollution Control Bd.
...Involved in Saving the Env't, Inc ., 254 Va. 278, 492 S.E.2d 431, 434 (1997) ; see also Envtl. Def. Fund, Inc. v. Va. State Water Control Bd. , 15 Va.App. 271, 422 S.E.2d 608, 612 (1992).III.A.The Board's Failure to Consider Electric Motors Petitioners assert that under Virginia's SIP, the ......
-
Harrison v. Ocean View Fishing Pier, LLC, Record No. 2311-06-1.
...arbitrary or capricious action that constitutes a clear abuse of the delegated discretion."'" Envtl. Defense Fund, Inc. v. State Water Control Bd., 15 Va.App. 271, 277, 422 S.E.2d 608, 611 (1992) (quoting ABC Comm'n v. York Street Inn, Inc., 220 Va. 310, 315, 257 S.E.2d 851, 855 (1979) (quo......