Environmental Defense Fund v. Virginia State Water Control Bd., 0824-90-2

• Decision Date: 07 May 1991
• Docket Number: No. 0824-90-2,0824-90-2
• Citation: 12 Va.App. 456,404 S.E.2d 728
• Parties: ENVIRONMENTAL DEFENSE FUND v. VIRGINIA STATE WATER CONTROL BOARD, et al. Record
• Court: Virginia Court of Appeals

Page 728

404 S.E.2d 728

12 Va.App. 456

ENVIRONMENTAL DEFENSE FUND v. VIRGINIA STATE WATER CONTROL BOARD, et al.

Record No. 0824-90-2.

Court of Appeals of Virginia.

May 7, 1991.

David S. Bailey, for appellant.

J. Steven Sheppard, III, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee State Water Control Bd.

Daniel L. Fitch (George H. Roberts, Jr., Wharton, Aldhizer & Weaver, on brief), for appellees Rocco Farm Foods, Inc., Rocco Realty, Inc. and Mountain View Rendering Co.

Present: COLE, BARROW and WILLIS, JJ.

COLE, Judge. ^*

The appellant, Environmental Defense Fund, filed two cases in the Circuit Court of the City of Richmond designated as Chancery No. N-7848-2 (referred to herein as Rocco 1) and N-8078-3 (referred to herein as Rocco 2).

This appeal is from two orders sustaining the demurrers of appellees based on a finding that the Environmental Defense Fund ("EDF") is without standing to challenge certain actions by the State Water Control Board ("Board"). On appeal, the issues are: (1) whether Code § 9-6.14:16 of the Virginia Administrative Process Act ("VAPA") affords EDF a right of judicial review in addition to that provided for in Code § 62.1-44.29; (2) whether EDF lacked standing under the applicable provision to seek judicial review of the Board's case decision; (3) whether the Board's internal memorandum was improperly applied as a rule or regulation; and (4) whether the Board's denial of EDF's request for a formal hearing was proper. We find that EDF lacked standing. Therefore, we affirm the decisions of the trial court.

Rocco Farm Foods, Inc., Rocco Realty, Inc. and Mountain View Rendering Co. (collectively "Rocco") own and operate a poultry processing plant and a wastewater treatment facility in Shenandoah County, Virginia. This facility discharges treated effluent into Stony Creek, a tributary of the north fork of the Shenandoah River. On June 27, 1988, the Board reissued Rocco's Virginia Pollutant Discharge Elimination System ("VPDES") permit, to be effective September 1, 1988. The VPDES permit placed limits on the amount of effluent which could be discharged into Stony Creek.

On July 22, 1988, after the permit was issued, the Board's staff issued an internal memorandum to all regional directors entitled "Flow Tiered VPDES Permit" ("Memorandum"). The Memorandum allowed for the issuance of flow-tiered VPDES permits. VPDES permits allow differing amounts of effluent to be discharged in correlation with the changes in river flow rates. For example, lower amounts of effluents could be discharged when river flow was the lowest, in the dry season, but higher amounts could be discharged in the rainy season when river flow was higher.

By letter dated September 15, 1988, Rocco petitioned the Board to amend its VPDES permit, which limited emission based on a single yearly low river value, to a flow-tiered permit. On November 8 and 15, 1988, the Board published public notice of Rocco's application for the modification of its VPDES permit. Several citizens and interest groups, including EDF, expressed concerns over the draft permit. In response, the Board conducted a public hearing in Woodstock, Virginia, on February 28, 1989. EDF attended that meeting and made comments. Additionally, EDF submitted written comments for the Board's consideration.

The Board authorized reissuance of the amended permit at the meeting on March 21, 1989. The amended permit became effective on April 28, 1989. On April 18, 1989, EDF requested a formal hearing in connection with the Board's decision to amend the permit.

On July 21, 1989, EDF filed an appeal in the Circuit Court of the City of Richmond challenging the Board's decision to amend the VPDES permit (Rocco 1). EDF asserted that the Memorandum was improperly applied as a rule or regulation, although it had not been promulgated in accordance with the VAPA. See Code § 9-6.14:4 (defining the terms "rule" and "regulation"). Also, EDF alleged that, in relaxing the VPDES limitations, the Board violated the "anti-backsliding" provisions of the Board's regulations and federal law.

On June 16, 1989, the Board denied EDF's request for a formal hearing. In its letter denying EDF's petition for formal hearing, the Board stated that EDF was without standing to request a formal hearing. Also, the Board stated that EDF had not raised any genuine and substantial legal issues warranting a formal hearing. In a separate cause of action, EDF appealed this denial to the Richmond Circuit Court alleging that the Board's action was arbitrary and in violation of its own procedural rules (Rocco 2).

On December 13, 1989, both cases were heard in the circuit court on demurrers alleging that EDF lacked standing to challenge the Board's actions. Rocco became a defendant through intervention.

The trial court found that two Code provisions are involved in determining whether EDF has standing in either case: Code §§ 9-6.14:16 and 62.1-44.29. The trial court held that EDF could appeal under Code § 9-6.14:16 even if appeal was unavailable under Code § 62.1-44.29 because the latter does not "specifically exclude appeal under the APA." Thus, EDF had standing to appeal if the court found it to be: (1) an "owner aggrieved" under Code § 62.1-44.29; (2) a "person affected by and claiming the unlawfulness of any regulation" under Code § 9-6.14:16; or (3) a "party aggrieved by and claiming the unlawfulness of a case decision" under Code § 9-6.14:16.

The trial court found that EDF was not an "owner aggrieved" under Code § 62.1-44.29 because it is not "an entity subject to the State Water Control Board's power and jurisdiction; i.e., an entity which owns or operates an actual or potential discharge source or a permit issued by the Board." EDF was not a "person affected" by a regulation because in order for the Memorandum to be a regulation there must be "a promulgation by an agency." Code § 9-6.14:4. Here, the Memorandum was merely a staff memorandum which was not promulgated by the agency, and was not binding on the Board. EDF was not a "party aggrieved" because it was neither a "party" nor was it "aggrieved." The trial court found that under the Board's Procedural Rule No. 1, section 1.13, only the applicant or permittee is a party capable of appeal. ¹ EDF was also not "aggrieved" by the Board's decision. The trial court noted that EDF, a non-profit environmental membership organization, appeared solely in a representative capacity for eight of its members, some of whom are riparian owners of Stony Creek and some who use the waterway for recreational purposes. The court found that EDF "does not and cannot have (in a representational capacity) the same interests as one directly affected," citing Virginia Beach Beautification Comm'n v. Board of Zoning Appeals, 231 Va. 415, 344 S.E.2d 899 (1986). Since the court found the EDF was without standing in both cases, the demurrers were sustained.

The first issue on appeal is whether the trial court erred in holding that Code § 9-6.4:16 afforded EDF a right of judicial review in addition to that provided in Code § 62.1-44.29.

Code § 9-6.14:16 provides:

Any person affected by and claiming the unlawfulness of a regulation, or party aggrieved by and claiming unlawfulness of a case decision ... shall have a right to direct review thereof ... in the manner provided by the Rules of the Supreme Court of Virginia. (emphasis added).

Code § 62.1-44.29 provides:

(1) Any owner aggrieved by a final decision of the Board under §§ 62.1-44.15(5), 62.1-44.15(8a), (8b), and (8c), 62.1-44.16, 62.1-44.17, 62.1-44.19 or § 62.1-44.25, whether such decision is affirmative or negative in form, is entitled to judicial review thereof in accordance with the provisions of the Administrative Process Act. (emphasis added).

To determine how the standing requirements in the basic law ² and the VAPA interrelate, the trial court referred to the statutorily declared policy of the VAPA. Code § 9-6.14:3 provides:

The purpose of this chapter is to supplement present and future basic laws conferring authority on agencies either to make regulations or decide cases as well as to standardize court review thereof save as laws hereafter enacted may otherwise expressly provide. This chapter does not supersede or repeal additional procedural requirements in such basic laws.

The trial court found that appeal was available under Code § 9-6.14:16, even if unavailable under Code § 62.1-44.29, because the basic law did not "specifically exclude the APA appeal." This was error.

Code § 9-6.14:16 does not supplement Code § 62.1-44.29 because the latter is not a "basic law conferring authority on agencies either to make regulations or decide cases." Code § 62.1-44.29 is a statute providing for judicial review. The purpose of Code § 9-6.14:16 is to "standardize court review ... save as laws hereafter enacted may otherwise expressly provide." Code § 9-6.14:3 (emphasis added). The basic law does not, contrary to the trial court's view, have to "specifically exclude the APA appeal." ³ Code § 9-6.14:16 gives deference to provisions of the basic law, such as Code § 62.1-44.29, which make express provisions for standing. This construction is supported by the concluding sentence of § 9-6.14:3 which states, "This chapter does not supersede or repeal additional procedural requirement in such basic laws." (emphasis added). This statement would be mere surplusage under the construction given Code § 9-6.14:16 by the trial court.

The trial court's construction of Code § 9-6.14:16 also assumes that in retaining the "owner aggrieved" requirement in Code § 62.1-44.29 the legislature intended "to do a vain and useless thing." See Williams v. Commonwealth, 190 Va. 280, 293, 56 S.E.2d 537, 543 (1949). The "owner aggrieved" requirement is a more restrictive standard than "person affected" or "party aggrieved." Had the legislature intended review to be standardized under Code § 9-6.14:16, it...