Francis O. Day Co., Inc. v. Director, Div. of Environmental Protection of West Virginia Dept. of Commerce, Labor and Environmental Resources, Nos. 21916
| Court | Supreme Court of West Virginia |
| Writing for the Court | BROTHERTON |
| Citation | 443 S.E.2d 602,191 W.Va. 134 |
| Parties | FRANCIS O. DAY CO., INC., Appellee, v. DIRECTOR, DIVISION OF ENVIRONMENTAL PROTECTION OF the WEST VIRGINIA DEPARTMENT OF COMMERCE, LABOR AND ENVIRONMENTAL RESOURCES, Appellee Below, Appellant, Murall Limited Partnership, a West Virginia Limited Partnership; the Berkeley County Public Service District, a Municipal Corporation; Elmer Vickers, Mary Catherine Vickers, Emmett Moler, Jr., Florence Moler, Individuals; and Citizens Against the Quarry, a Not-For-Profit Organization, Intervenors Below, Appellants, Elmer Vickers, Mary Catherine Vickers, Emmett Moler, Jr., Florence Moler, Individuals; and Citizens Against the Quarry, a Not-For-Profit Organization, Intervenors Below, Sandra Shade; James and Betty Hunter; Gary and Gloria Willis, and the Board of Trustees of the University of West Virginia System, Intervenors Below, Board of Trustees of the University of West Virginia System, Intervenor Below, Jefferson County League of Women Voters; City of Martinsburg; Eastern Panhandle Regional Planning and Development Council--Region 9; Potomac Audubon Society; Bob Wise, United States Representative, 2nd District; Sondra Moore Lucht, Senator, 16th District; Dale Manuel, Delegate, 40th District; Vicki Douglas, Delegate, 37th District; County Commission of Berkeley County, Intervenors. |
| Docket Number | 21917,Nos. 21916 |
| Decision Date | 28 March 1994 |
Page 602
v.
DIRECTOR, DIVISION OF ENVIRONMENTAL PROTECTION OF the WEST
VIRGINIA DEPARTMENT OF COMMERCE, LABOR AND
ENVIRONMENTAL RESOURCES, Appellee Below, Appellant,
Murall Limited Partnership, a West Virginia Limited
Partnership; the Berkeley County Public Service District, a
Municipal Corporation; Elmer Vickers, Mary Catherine
Vickers, Emmett Moler, Jr., Florence Moler, Individuals;
and Citizens Against the Quarry, a Not-For-Profit
Organization, Intervenors Below, Appellants,
Elmer Vickers, Mary Catherine Vickers, Emmett Moler, Jr.,
Florence Moler, Individuals; and Citizens Against
the Quarry, a Not-For-Profit
Organization, Intervenors Below,
Sandra Shade; James and Betty Hunter; Gary and Gloria
Willis, and the Board of Trustees of the
University of West Virginia System,
Intervenors Below,
Board of Trustees of the University of West Virginia System,
Intervenor Below,
Jefferson County League of Women Voters; City of
Martinsburg; Eastern Panhandle Regional Planning and
Development Council--Region 9; Potomac Audubon Society;
Bob Wise, United States Representative, 2nd District;
Sondra Moore Lucht, Senator, 16th District; Dale Manuel,
Delegate, 40th District; Vicki Douglas, Delegate, 37th
District; County Commission of Berkeley County, Intervenors.
Decided March 28, 1994.
Page 603
[191 W.Va. 135] Syllabus by the Court
1. Evidentiary findings made at an administrative hearing should not be reversed unless they are clearly wrong.
2. " ' "The primary object in construing a statute is to ascertain and give effect to the intent of the legislature." Syl.Pt. 1, Smith v. State Workmen's Compensation Comm., 159 W.Va. 108, 219 S.E.2d 361 (1975).' Syl.Pt. 2, State ex rel. Fetters v. Hott, 173 W.Va. 502, 318 S.E.2d 446 (1984)." Syllabus point 2, Lee v. West Virginia Teachers Retirement Board, 186 W.Va. 441, 413 S.E.2d 96 (1991).
3. " 'Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.' Syl. pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968)." Syllabus point 1, Courtney v. State Dept. of Health of West Virginia, 182 W.Va. 465, 388 S.E.2d 491 (1989).
4. The exclusion found in West Virginia Code § 22A-4-2(k) (1993) exempts limestone surface mining from the bonding and reclamation provisions of the statute only after the permit is granted. Prior to the granting of a permit to surface mine, the Director of the Division of Environmental Protection of the West Virginia Department of Commerce, Labor and Environmental Resources retains the authority to refuse to grant a limestone, sandstone or sand surface mining permit based upon any of the criteria found in W.Va.Code § 22A-4-10. Once a permit is granted, the permit holder is excluded from the surface mining bonding and reclamation requirements otherwise found in this statute.
Charles R. McElwee, Christopher B. Power, David L. Yaussy, Robinson & McElwee, Charleston, for Francis O. Day Co., appellee.
Susan R. Snowden, Paul B. Weiss, Martin & Seiberet, Martinsburg, for Murall Ltd. Partnership, et al., intervenors.
Brentz H. Thompson, Sr. Asst. Atty. Gen., Charleston, for Bd. of Trustees of the University of West Virginia System, intervenor.
William E. Adams, Jr., Deputy Atty. Gen., Shirley A. Skaggs, Sr. Asst. Atty. Gen.,
Page 604
[191 W.Va. 136] Charleston, for Director, Div. of Environmental Protection, appellant.James Randall Rhodes, Braun Hamstead, Hamstead & Associates, Charles Town, for Sandra Shade, et al., intervenors.
David A Camilletti, Shepherdstown, for the Jefferson County League of Women Voters, et al., intervenors.
BROTHERTON, Chief Justice:
The appellant, the Division of Environmental Protection of the West Virginia Department of Commerce, Labor and Environmental Resources (hereinafter referred to as "DEP") appeals from an August 4, 1993, ruling of the Circuit Court of Kanawha County which reversed the DEP Director's decision to deny a surface mining permit to the appellee, Francis O. Day Co., Inc. (hereinafter referred to as "Day").
In January, 1989, Day applied for a mining permit to operate a limestone quarry on land located in Berkeley and Jefferson Counties, West Virginia. The proposed location of the 300-acre quarry is adjacent to the proposed IRS computer facility and the new United States Coast Guard facility. The West Virginia University Experimental Farm, the Veteran's Hospital, and a working dairy farm are also located in the area. Quite a controversy was sparked over the proposed quarry, and local land owners and business owners became intervenors in this suit opposing the quarry. Murall Limited Partnership, which owns the business park in which the IRS facility is to be located and the Coast Guard facility is already located, claims that both the Coast Guard and the IRS have expressed "serious concerns" regarding the adverse effects of blasting and dust emissions from the proposed quarry. There are also concerns about water pollution, as the Berkeley County Public Service District owns a water well (the Baker Heights well) quite close to the proposed quarry. Thus, additional intervenors were included in the suit, based upon the potential effect on their water supply.
During the permitting process, Day submitted computer models purporting to demonstrate that all the concerns over blasting, dust, noise, vibrations, and water depletion and pollution could be controlled or at least monitored and remediated. Day contended that it did not have to apply for a West Virginia National Pollutant Discharge Elimination System (NPDES) regarding the water purity, but proposed a model groundwater inspection system.
Upon reviewing these computer models and proposals, the DEP's review team concluded that, although the plans met the basic technical criteria, they could not say whether the plans demonstrated that the feared problems with blasting, dust, noise, and water would not occur. Thus, the team recommended that the decision to approve or deny the permit application be made by applying the standards applicable to limestone surface mining found in W.Va.Code § 22A-4-1 et seq. (1993).
During the permitting process, two hearings were held. Day contends that this was over and above what was required by statute. On December 11, 1992, the Director denied the permit application. Day appealed the decision to the West Virginia Reclamation Board of Review (hereinafter referred to as the "Board"). Only five of the seven Board members were able to deliberate on this issue, since one position was vacant and one member recused himself. The statutory minimum required for Board action is the vote of four Board members. Day was not able to get four votes. Several intervenors also presented evidence before the Board. After taking evidence and considering the arguments of counsel, the Board refused to reverse the Director's order. Day stated that the Board refused to hear arguments regarding the need for a NPDES permit or approve the proposed groundwater injection system as not being within the Board's jurisdiction.
On June 5, 1992, Day sought a writ of mandamus in the Circuit Court of Kanawha County. On June 23, 1992, the circuit court issued an order directing the Board to compel the Director to issue the mining permit and to approve the groundwater infiltration system within ten days. 1
Page 605
[191 W.Va. 137] The Board appealed, and we accepted the case and granted a stay pending our final decision. In Francis O. Day Co. v. Board of Review, 188 W.Va. 418, 424 S.E.2d 763 (1992), we concluded that where an administrative board cannot render a decision because it lacks a quorum, it should enter an order to allow the parties to proceed to the next appeal level. We then remanded the case with directions that the circuit court hear the Day appeal and allow the intervenors to intervene in the case.
Upon remand, a scheduling order was entered and the intervenors and Day filed briefs which outlined their positions. The DEP decided not to file a separate brief because the previous briefs were adequate. However, the circuit court failed to hold a hearing. On July 1, 1993, the circuit court issued the following decision: "... the decision of the Director is clearly wrong in view of the reliable, substantial and probative evidence of the record and contrary to applicable law." On July 12, 1993, the DEP filed a motion to reconsider or, in the alternative, a motion for stay or order pending application for appeal. A notice...
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...hearing should not be reversed unless they are clearly wrong." Syl. pt. 1, Francis O. Day Co. v. Director, Div. of Envtl. Prot., 191 W.Va. 134, 443 S.E.2d 602 (1994). The clearly standard does not entitle a reviewing court to reverse the finder of fact simply because it may have decided the......
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Trimble v. West Virginia Bd. of Directors, No. 28490.
...hearing should not be reversed unless they are clearly wrong." Syl. pt. 1, Francis O. Day Co. v. Director, Div. of Envtl. Prot., 191 W.Va. 134, 443 S.E.2d 602 (1994). The clearly standard does not entitle a reviewing court to reverse the finder of fact simply because it may have decided the......
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