King Land Corp. v. Board of Sup'rs of King and Queen County

• Decision Date: 18 August 1987
• Docket Number: No. 0765-86-1,0765-86-1
• Citation: 359 S.E.2d 823,4 Va.App. 597
• Court: Virginia Court of Appeals
• Parties: KING LAND CORPORATION v. BOARD OF SUPERVISORS OF KING AND QUEEN COUNTY, et al. Record

Page 823

359 S.E.2d 823

4 Va.App. 597

KING LAND CORPORATION v.BOARD OF SUPERVISORS OF KING AND QUEEN COUNTY, et al.

Record No. 0765-86-1.

Court of Appeals of Virginia.

Aug. 18, 1987.

Thomas E. Spahn(Robert H. Patterson, Jr., Robert E. Payne; McGuire, Woods & Battle; John E. Hamilton, Jr., on brief), for appellant.

L.B. Cann, III(George B. Little, James K. Cluverius, Timothy M. Kaine; Little, Parsley & Cluverius, P.C.; John L. Mitchell, Jr., on brief), for appellees.

Present: BENTON, COLE and KEENAN, JJ.

COLE, Judge.

This is an appeal from a decision of the Circuit Court of King and Queen County holding that the appellant's permit to operate a solid waste, nonhazardous landfill was invalid.Two central issues are raised on appeal: (1) whether the circuit court erred in finding that, because the Board of Health failed to promulgate certain regulations pursuant to Code§ 32.1-182, King Land's permit to operate a landfill was invalid; and (2) assuming that the Board of Health should have promulgated the regulations, did the circuit court err in cancelling King Land's permit.We reverse the decision of the circuit court.

On December 9, 1985, King Land applied to the State Department of Health for a permit for a 400 ton per day landfill on a 120 acre site in King and Queen County.The application process was completed and on December 24, 1986, King Land obtained a permit to operate a solid waste, nonhazardous landfill.At the time the permit was issued, the financial responsibility regulations required under Code§ 32.1-182 had not been adopted.The permit contained no requirement that King Land demonstrate its financial responsibility or provide any financial assurances that would have protected the public from the consequences of any abandonment of the landfill.

The Board of Supervisors of King and Queen County learned of the King Land permit in early January, 1986, and filed its petition in the Circuit Court of King and Queen County.The supervisors challenged the validity of the permit based on the Health Commissioner's failure to promulgate and apply financial responsibility regulations required by Code§ 32.1-182.

On April 28, 1986, the Department of Health issued an amended permit governing King Land's operation.One of the key features of the revised plan was a letter of credit which King Land agreed to execute.This letter of credit in the amount of $143,500 was designed to assure that public safety would not be compromised should King Land abandon the landfill.

On May 15, 1986, the Board of Supervisors filed a motion for summary judgment in the pending suit.It claimed that the issuance by the Health Commissioner of the King Land permit in the absence of the required financial responsibility regulations constituted an "error of law" under Code§ 9-6.14:17, thereby requiring that the permit be "set aside" under Code§ 9-6.14:19.Before argument on the summary judgment motion, King Land submitted another proposed letter of credit in which the reference to the absent state regulations was deleted.At the time this second draft letter of credit was proposed, the financial responsibility regulations required under Code§ 32.1-182 had still not been promulgated.

The circuit court granted the Board's summary judgment motion and invalidated King Land's permit on June 23, 1986.King Land appeals the entry of summary judgment and requests reversal and remand for a trial on the merits.In its final order, the circuit court specifically remanded the matter to the State Health Commissioner with directions that "no new solid waste landfill permit be issued with regard to the King Land landfill in King and Queen County to King Land ... until regulations insuring the financial responsibility of solid waste landfill operators are promulgated, adopted and implemented pursuant to Section 32.1-182 of the Code of Virginia."

This appeal focuses upon an interpretation of Code§ 32.1-182(A):

The Board shall, no sooner than October 1, 1981, promulgate regulations which insure that, in the event that a facility for the disposal of solid waste or a facility in which hazardous waste is stored, treated, or disposed is abandoned, the costs associated with protecting the public health and safety from the consequences of such abandonment may be recovered from the person abandoning the facility.

King Land contends that the statute is plain and unambiguous and leaves no room for construction by the court.It argues that the General Assembly directed the Board of Health to promulgate financial responsibility regulations; it directed that this could not be done before October 1, 1981; but, it did not specify a deadline when the regulations had to be promulgated.Continuing, King Land reasons that the General Assembly did not condition the issuance of permits upon the promulgation of the regulations.Therefore, it argues that the trial court should not have ignored the General Assembly's conscious decision not to include a deadline in Code§ 32.1-182(A).

The Board of Supervisors takes the opposite position.Count two of their petition, which forms the basis for the issue in this appeal, contains the following allegation:

[F]or a number of years Defendant State Board of Health has been obligated pursuant to the provisions of § 32.1-182 ... to promulgate and implement regulations ensuring that, in the event a solid waste disposal facility is abandoned, the costs associated with protecting the public health and safety from the consequences of such abandonment are recoverable from the person or persons abandoning the facility.

The petition further alleges that the "Board of Health has failed, refused and neglected to fulfill these requirements ... since no [such] regulations ... [had] been promulgated and implemented."Finally, the supervisors allege that this failure harmed them within the meaning of §§ 9-6.14:16 to 9-6.14:19 of the Administrative Process Actand§ 8.01-184 et seq., and that the permit issued to King Land should be declared invalid as unlawfully issued.

A brief history of the solid waste disposal statutes will aid in the understanding of the present problem.Although similar but less complex laws have been in existence for at least thirty years, we begin with the situation as it existed about fifteen years ago.The 1970 session of the General Assembly adopted Code§ 32-9.1 as follows:

§ 32-9.1 Solid waste disposal.--The Board shall regulate and prescribe the method or methods of disposition of garbage, refuse and other solid wastes or any combination thereof in this State to be utilized by each county, city and town in the State.On or before January 1, 1972, each county, city and town of this State upon written request by the Board when in its opinion such county, city or town has not provided for proper disposition of its solid wastes shall submit to the Board a plan in a form to be prescribed by the Board, setting forth its plan for garbage and all other solid wastes disposal, which plan shall include the cost, the proposed method of financing, the site or sites to be used and the overall changes in such plan anticipated for the ensuing twenty years.Each county's plan must include the facilities to be used by all towns located therein.Any combination of cities, counties and towns may submit a regional plan in lieu of an individual plan.

1970 Va.Acts c. 645.Based upon the broad general powers granted under this section, the Department of Health adopted Rules and Regulations of the Department of Health, effective April 1, 1971.These Rules and Regulations continued in force to at least October 1, 1979, when Code§ 32-9.1 was repealed.The Rules and Regulations provided that each person who operated a disposal system had to apply for a permit.When, upon review of the application, the Health Commissioner determined that the proposed design met the requirements of the regulations, a permit to proceed with construction, alteration and/or operation was issued.The Rules and Regulations also provided that it was unlawful for any person to construct or operate a solid waste system unless a valid permit was obtained from the Health Commissioner for each facility in the name of a specified person at each specific location.

At its regular session of 1974, the General Assembly directed the Code Commission to study Title 32, and to report its findings in the form of a recodification of that title.In December of 1978, the Commission made its report to the Governor and the General Assembly and the proposed revision of Title 32 was adopted by the 1979 General Assembly as Chapter 711 of the Acts of 1979.Effective October 1, 1979, Title 32 of the Code was repealed and Title 32.1 was enacted in lieu thereof.

The recodification of Title 32 is commented upon in a Report of the Solid Waste Commission to the Governor and the General Assembly of Virginia (1979 House and Senate Documents, Vol. 1, Senate DocumentNo. 29).It reports:

The Virginia Code Commission is currently in the process of recodifying Title 32 of the Code of Virginia relating to health.A new chapter, the Solid and Hazardous Waste Management Act, is being proposed in order to bring the State into compliance with the provisions of the Federal Act including rules and regulations to be promulgated by the Federal Environmental Protection Agency.The Solid Waste Commission, the Department of Health, Code Commission and Environmental Protection Agency (hereafter referred to as EPA) have reviewed the draft of the proposed legislation which will be considered by the General Assembly for approval during the 1979 Session.

We are involved in this case with an interpretation of Code§§ 32.1-177 through 32.1-186 in effect at the date of the summary judgment order on June 23, 1986.Code§ 32.1-178 defines the powers and duties of the State Board of Health.Broad and extensive powers and duties are granted to the Board to exercise general supervision and...