Frederick County Business Park, LLC v. Virginia Dept. of Environmental Quality

• Decision Date: 04 June 2009
• Docket Number: Record No. 081175.
• Citation: 278 Va. 207,677 S.E.2d 42
• Parties: FREDERICK COUNTY BUSINESS PARK, LLC, et al. v. VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY, et al.
• Court: Virginia Supreme Court

677 S.E.2d 42

278 Va. 207

FREDERICK COUNTY BUSINESS PARK, LLC, et al. v. VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY, et al.

Record No. 081175.

Supreme Court of Virginia.

June 4, 2009.

Steven T. Webster (Aaron S. Book, Webster Book, on briefs), Leesburg, for appellants.

Kerri L. Nicholas, Asst. Atty. Gen. (William C. Mims, Atty. Gen.; Roger L. Chaffe, Senior Asst. Atty. Gen., on brief), for appellees.

Present: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, and GOODWYN, JJ., and LACY, Senior Justice.

OPINION BY Senior Justice ELIZABETH B. LACY.

In this appeal from a Court of Appeals' judgment sustaining the decision of the Virginia Department of Environmental Quality (DEQ), we consider whether the DEQ's decision that a facility proposed by Frederick County Business Park, LLC (FCBP), was a materials recovery facility (MRF) subject to the permitting requirements of the Virginia Solid Waste Management Regulations, 9 VAC § 20-80-10, et seq., was arbitrary or capricious.

FACTS

The facts are not in dispute. FCBP planned to collect construction waste in containers placed primarily at new home construction sites. The full containers would be taken to FCBP's proposed facility where marketable materials would be separated from the construction waste and stored in on-site containers for subsequent use or reuse. The materials FCBP planned to separate for recycling purposes included concrete, corrugated cardboard, mixed paper, plastics, metal, and wood.¹ FCBP estimated that 70% of the construction waste received at the facility would be prepared for recycling and the remaining 30% would be transferred to a permitted landfill for disposal.

In December 2006, FCBP wrote a "courtesy" letter to the DEQ describing the operation of its proposed facility and stating its belief that no permit was required for the facility because it was a recycling facility and Code § 10.1-1408.1(J) states that no permit "shall be required ... for recycling." FCBP also maintained that no permit was required because the materials that were to be recycled were deemed not to be solid waste under 9 VAC § 20-80-150(E) of the Virginia Solid Waste Management Regulations.

The DEQ replied by letter dated March 26, 2007, stating that although FCBP assumed that no permit was required, a facility that receives "mixed wastes for on-site processing into recyclable and unrecyclable fractions" as proposed by FCBP is a MRF as defined in 9 VAC § 20-80-10 of the Virginia Solid Waste Management Regulations.²

The DEQ noted that a "MRF receives mixed waste loads and extracts the recycle materials fraction from the waste prior to the transfer of the waste residuum for disposal." The DEQ concluded that FCBP was therefore required to obtain a permit and meet the requirements of the Virginia Solid Waste Management Regulations for its proposed facility.

FCBP unsuccessfully appealed the DEQ's decision to the Circuit Court of Fairfax County and the Court of Appeals of Virginia. Both tribunals held that the record supported the DEQ's factual finding that approximately 30% of the materials coming to the proposed facility would be non-recyclable, and that the DEQ's conclusion that the proposed facility was a MRF was not arbitrary or capricious. Frederick County Bus. Park, LLC v. Virginia Dep't of Envtl. Quality, 52 Va.App. 40, 52, 660 S.E.2d 698, 704 (2008).

DISCUSSION

In its appeal to this Court, FCBP again asserts that in requiring a permit for the proposed facility, the DEQ improperly interpreted the Virginia Solid Waste Management Regulations and Code § 10.1-1408.1(J). Specifically, FCBP argues that Code § 10.1-1408.1(J) exempts recycling facilities from any permitting requirements³ and that under the DEQ regulations 9 VAC §§ 20-80-150 and -160, the materials that would be separated at the facilities for recycling purposes do not constitute solid waste and are exempt from the permitting requirement.

The DEQ responds that construction waste is defined as solid waste, 9 VAC § 20-80-10, and that until the recyclable or reusable material is separated from the construction waste it does not become material "exempt" from the permitting process. The DEQ, reciting that a MRF is defined as a "solid waste management facility for the collection, processing, and recovery of material ... from solid waste," 9 VAC § 20-80-10, continues, saying that sorting the solid waste received into recyclable or reusable components as proposed by FCBP is "exactly" the activity performed at a MRF. The DEQ also points out that...