Residents Involved in Saving the Environment, Inc. v. Com., Dept. of Environmental Quality

• Decision Date: 18 June 1996
• Docket Number: No. 1407-95-2,1407-95-2
• Citation: 22 Va.App. 532,471 S.E.2d 796
• Court: Virginia Court of Appeals
• Parties: RESIDENTS INVOLVED IN SAVING THE ENVIRONMENT, INC., et al. v. COMMONWEALTH of Virginia/DEPARTMENT OF ENVIRONMENTAL QUALITY and Peter W. Schmidt, Director. Record

Page 796

471 S.E.2d 796

22 Va.App. 532

RESIDENTS INVOLVED IN SAVING THE ENVIRONMENT, INC., et al. v. COMMONWEALTH of Virginia/DEPARTMENT OF ENVIRONMENTAL QUALITY and Peter W. Schmidt, Director.

Record No. 1407-95-2.

Court of Appeals of Virginia Richmond.

June 18, 1996.

Clarence M. Dunnaville, Jr. (Henry L. Marsh, III; Harold M. Marsh; David S. Bailey; Hill, Tucker & Marsh, on briefs), Richmond, for appellants.

Deborah Love Feild, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellees.

Timothy G. Hayes (Clayton L. Walton; Williams, Mullins, Christian & Dobbins, on brief), Richmond, for intervener Browning-Ferris Industries of South Atlantic, Inc.

Present: ELDER, BRAY and FITZPATRICK, JJ.

FITZPATRICK, Judge.

Residents Involved in Saving the Environment, Inc. (Residents) ¹ appeal the circuit court's decision affirming the Department of Environmental Quality's (the Department) issuance of a sanitary landfill permit to Browning-Ferris Industries of South Atlantic, Inc. (BFI). Residents argue that the Director of the Department (Director) violated Code § 10.1-1408.1(D) by issuing the permit without making the required, specific determination that the proposed facility posed "no substantial present or potential danger to human health or the environment." The Department asserts that: (1) by issuing the permit, the Director implicitly made the required determination under Code § 10.1-1408.1(D), and (2) because Residents failed to name BFI as a party in the notice of appeal or to serve it with the petition for appeal, the appeal should have been dismissed. BFI, as an intervener, argues that the court erred in denying its motion to change venue. We affirm the circuit court's decision as to the Department's motion to dismiss and BFI's motion to change venue. However, we reverse the circuit court's decision to affirm the permit's issuance because the record fails to show that the Director made the required determination under Code § 10.1-1408.1(D).

BACKGROUND

On September 18, 1990, BFI filed a notice of intent with the Department to initiate the application process for a permit to build a landfill in King and Queen County. ² BFI also filed a local certification that the proposed location and operation of the landfill complied with local ordinances, as required by Code § 10.1-1408.1(B)(1). ³ On February 4, 1991, BFI submitted Part A of its permit application, which contained information concerning whether the proposed site was suitable for the proposed use and addressing the siting criteria required by the Virginia Solid Waste Management Regulations (SWMR). The Department's staff reviewed Part A and approved it on July 29, 1991. On March 20, 1992, BFI submitted Part B of its application, addressing facility design, construction, and operation. The Department's technical staff reviewed Part B, made numerous revisions to the original proposal, and determined that the application complied with the SWMR.

The Department subsequently prepared a draft permit and held a public hearing on March 24, 1993, with the public comment period extended to April 5, 1993. The Department's staff received comments on the draft permit, made changes based on these comments before recommending that the Director approve the permit, and responded in writing to many of the issues raised during the public comment period. On June 2, 1993, the Director issued the permit to BFI. Prior to issuing the permit, the Director made no explicit finding or determination that the proposed facility posed "no substantial present or potential danger to human health or the environment," as required by Code § 10.1-1408.1(D).

On July 30, 1993, Residents appealed the permit's issuance to the Circuit Court for the City of Richmond, arguing that the Director "failed to investigate whether the construction and/or operation of the landfill will create an adverse impact or a present or potential hazard to human health." Residents also argued that the Director was required to make the specific determination that the landfill posed no "substantial present or potential danger to human health or the environment." In their appeal, Residents named only the Department and the Director as parties. BFI later intervened in the appeal and moved to transfer the case to King and Queen County, the preferred venue under Code § 8.01-261(1). The circuit court denied the motion. After hearing oral argument on October 20, 1994, the circuit court issued a letter opinion on May 4, 1995, finding that: (1) Code § 10.1-1408.1(D) did not impose an independent duty of investigation on the Director, and (2) the Director's action in issuing the permit complied "with the applicable regulations or law governing the concerns the appellant[s] raise[ ]."

NECESSARY PARTIES IN ADMINISTRATIVE APPEALS

The Department argues that the circuit court should have dismissed Residents' appeal because they failed to name BFI as a party in the notice of appeal and failed to serve BFI with the petition for appeal.

In its letter opinion of November 5, 1993, the circuit court refused to dismiss Residents' appeal and determined that "BFI [did] not fit the definition of 'party' as used in Rules 2A:2 and 2A:4."

Appeals pursuant to the Virginia Administrative Process Act (VAPA), Code §§ 9-6.14:1 to 9-6.14:25, are governed by Part 2A of the Rules of the Supreme Court of Virginia. Rule 2A:1(c). Rule 2A:1(b) provides, in pertinent part, as follows:

The term "party" means any person affected by and claiming the unlawfulness of a regulation or a party aggrieved who asserts a case decision is unlawful and any other affected person or aggrieved person who appeared in person or by counsel at a hearing, as defined in § 9-6.14:4 E, with respect to the regulation or case decision as well as the agency itself.

(Emphasis added). A "rule" or "regulation" under the VAPA is "any statement of general application, having the force of law, affecting the rights or conduct of any person, promulgated by an agency in accordance with the authority conferred on it by applicable basic laws." Code § 9-6.14:4(F). In contrast, the VAPA defines the term "case" or "case decision" as follows:

any agency proceeding or determination that, under the laws or regulations at the time, a named party as a matter of past or present fact, or of threatened or contemplated private action, either is, is not, or may or may not be (i) in violation of such law or regulation or (ii) in compliance with any existing requirement for obtaining or retaining a license or other right or benefit.

Code § 9-6.14:4(D). The Reviser's Notes to Code § 9-6.14:4 indicate that the primary distinction between regulations and case decisions is that regulations are "legislative" or "quasi-legislative" in nature and that case decisions serve a "judicial" or "quasi-judicial" function. Code § 9-6.14:4, Reviser's Notes D. See also Kenley v. Newport News General & Non- Sectarian Hosp. Ass'n, Inc., 227 Va. 39, 44, 314 S.E.2d 52, 55 (1984) ("[T]he 'heart' of a case decision 'is a fact determination respecting compliance with law.' " (quoting Code § 9-6.14:4, Reviser's Notes D)). Under the VAPA, the term "hearing" refers to the following:

agency processes other than those informational or factual inquiries of an informal nature provided in 9-6.14:7.1 and 9-6.14:11 of this chapter and includes only (i) opportunity for private parties to submit factual proofs in formal proceedings as provided in 9-6.14:8 of this chapter in connection with the making of regulations or (ii) a similar right of private parties or requirement of public agencies as provided in 9-6.14:12 hereof in connection with case decisions.

Code § 9-6.14:4(E).

Any party appealing an agency case decision must file its notice for appeal within thirty days of the final order in the case decision. Rule 2A:2 provides, in pertinent part, as follows:

The notice of appeal shall identify the ... case decision appealed from, shall state the names and addresses of the appellant and of all other parties and their counsel, if any, shall specify the circuit court to which the appeal is taken, and shall conclude with a certificate that a copy of the notice of appeal has been mailed to each of the parties.... The omission of a party whose name and address cannot, after due diligence, be ascertained shall not be cause for dismissal of the appeal.

Within thirty days after filing the notice of appeal, the appellant must file his petition for appeal with the clerk of the circuit court. Rule 2A:4(a). "Such filing shall include all steps provided in Rules 2:2 and 2:3 to cause a copy of the petition to be served (as in the case of a bill of complaint in equity) on the agency secretary and on every other party." Id.

We agree with the circuit court and hold that BFI is not a "party" as defined in Rule 2A:1(b) and as used in Part 2A of the Rules of the Supreme Court of Virginia. BFI is not "a person affected by and claiming the unlawfulness of a regulation" because: (1) an agency case decision, not an agency regulation, is at issue in this case; and (2) BFI does not assert that the Director's issuance of the permit was unlawful. As the company that benefitted from the agency's granting of the landfill permit, BFI is also not "a party aggrieved who asserts a case decision is unlawful." Additionally, BFI is not "any other affected person or aggrieved person who appeared in person or by counsel at a hearing" because it is undisputed that no "hearing" as defined in Code § 9-6.14:4(E) was held concerning BFI's permit request.

Additionally, the Department argues that BFI was a "necessary party," relying on Asch v. Friends of the Community of the Mt. Vernon Yacht Club, 251 Va. 89, 465 S.E.2d 817 (1996). In Asch, the Supreme Court of Virginia defined "necessary party":

"Where an individual is in the actual enjoyment of the subject matter, or has an interest in it, either in possession or expectancy,...