Va. Dep't of Envtl. Quality v. E. End Landfill, LLC
| Decision Date | 27 October 2015 |
| Docket Number | Record No. 0384-15-2 |
| Court | Virginia Court of Appeals |
| Parties | VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY v. THE EAST END LANDFILL, LLC |
UNPUBLISHED
Present: Judges Decker, Russell and AtLee
Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
David C. Grandis, Assistant Attorney General (Mark R. Herring, Attorney General; Cynthia E. Hudson, Chief Deputy Attorney General; Kelci A.M. Block, Assistant Attorney General, on briefs), for appellant.
Andrea W. Wortzel (Troutman Sanders, LLP, on brief), for appellee.
The Virginia Department of Environmental Quality (DEQ) appeals the circuit court's decision to remand the permit application of the East End Landfill (appellee) to the agency. DEQ contends that the circuit court erred by reversing and remanding its decision on the appellee's application and by awarding the appellee costs and attorneys' fees. We hold that the court appropriately concluded that DEQ incorrectly interpreted the applicable statute. However, we also hold that the appellee may not recover costs and attorneys' fees because the agency's position, although incorrect, was reasonable. Consequently, we affirm in part, reverse in part, and remand this case to the circuit court for action consistent with this opinion.
The procedural history of this case is not in dispute. The appellee operates a solid waste management facility in Henrico County. It filed an application with DEQ seeking permission to expand its facility.
The solid waste management facility at issue is located within the boundaries of the Central Virginia Waste Management Authority (CVWMA), a multi-jurisdictional solid waste management planning authority. CVWMA is charged with developing and implementing a "comprehensive regional solid waste management plan." See Code § 10.1-1411(A).
In preparation for its application to DEQ, the appellee sent CVWMA a letter requesting an amendment to the regional solid waste management plan reflecting the proposed facility expansion. CVWMA replied with a letter stating that, consistent with the request, it had begun "the process of amending the [p]lan." The letter further stated that the process included a public hearing and required the approval of the Richmond Regional Planning District Commission, the Crater Planning District Commission, and the CVWMA board of directors. Finally, the letter represented that "[b]ased on the information" provided, the director of operations "anticipate[d] that the proposed [p]lan amendment [would] be approved."
The appellee included the letter from CVWMA as part of its DEQ application to modify its permit to allow facility expansion. DEQ deemed the appellee's application "complete."1 DEQ noted that it would continue to review the application for "technical adequacy . . . in accordance with the Virginia Solid Waste Management Regulations."
CVWMA subsequently found that the appellee's proposed expansion was "inconsistent with the local and regional solid waste needs." Consequently, it decided not to approve the appellee's request to amend the regional solid waste management plan.
DEQ conducted an informal fact-finding conference to consider the appellee's application. A regional director of DEQ issued proposed findings of facts and conclusions of law. She concluded that the agency could not "continue permit processing" in light of CVWMA's express rejection of the appellee's request to amend the regional solid waste management plan.
The director of DEQ reviewed the record and the regional director's recommendations. He adopted the regional director's proposed findings of facts and conclusions of law. Consequently, the director of DEQ concluded that the agency was "precluded from continuing to process [the appellee's] permit application."
The appellee appealed the agency decision to the circuit court. It argued, in pertinent part, that the agency disregarded its responsibility to independently determine "consistency between solid waste permit applications and solid waste management plans" and that the decision was not in accordance with state law. The circuit court found in favor of the appellee. The court held that the appellee's inclusion of the CVWMA letter, stating that it had "initiated the process to revise" the waste management plan, met the statutory requirement that the application contain a "certification" from the local governing body that the local "solid waste management planning unit ha[d] initiated the process to revise the solid waste management plan to include the . . . expanded facility." See Code § 10.1-1408.1(B)(9). The court concluded that CVWMA's subsequent decision that the proposed expansion was inconsistent with its waste management plan did not render the application incomplete. Accordingly, the circuit court set aside the DEQ decision and remanded the case to the agency for further administrativeproceedings. In addition, the court held that the agency's position was "not substantially justified" and accordingly ordered it to pay the appellee reasonable costs and attorneys' fees.
DEQ appeals the decision of the circuit court. The agency argues that its administrative decision to terminate the appellee's permit application was in accordance with the relevant statute. It also challenges the circuit court's award of costs and attorneys' fees.
The Department of Waste Management was consolidated with other environmental state agencies to form DEQ. Code § 10.1-1183. DEQ is responsible for "supervis[ing] and control[ling] solid waste management activities." Frederick Cty. Bus. Park, LLC v. DEQ, 278 Va. 207, 211, 677 S.E.2d 42, 45 (2009). The purpose of the statutory scheme is to "protect the Commonwealth's environment, thereby promoting the health and well-being of her citizens." Browning-Ferris Indus. of S. Atl. v. Residents Involved in Saving the Env't, Inc., 254 Va. 278, 284, 492 S.E.2d 431, 435 (1997); see also Code § 10.1-1183.
Under the Virginia Waste Management Act, DEQ is responsible for reviewing applications for permits to operate landfills, including applications to modify permits to allow for facility expansions. Code § 10.1-1408.1. An application for a modification to a permit to allow a solid waste management facility expansion:
shall include certification from the governing body for the locality in which the facility is . . . located that: (i) the proposed . . . expansion or increase in capacity of the existing facility is consistent with the applicable local or regional solid waste management plan . . . or (ii) the local government or solid waste management planning unit has initiated the process to revise the solid waste management plan to include the . . . expanded facility.
Code § 10.1-1408.1(B)(9). The statute further provides that "[i]nclusion of such certification shall be sufficient to allow processing of the permit application, up to but not includingpublication of the draft permit or permit amendment for public comment, but shall not bind the Director in making the determination required by subdivision D 1." Id.
The DEQ director's permit determination is "a substantive safeguard which completes the permit review process." Browning-Ferris, 254 Va. at 285, 492 S.E.2d at 435. Before the director can render a determination under subsection (D)(1), there must be an "evaluation of comments by the host local government, other local governments, and interested persons." Code § 10.1-1408.1(D)(1). In addition, in order for DEQ to permit a facility expansion, the DEQ director must determine that "the proposed solid waste management . . . facility expansion[] or additional capacity is consistent with regional and local solid waste management plans."2 Id.
The parties agree that the issue is whether DEQ correctly determined that the appellee's application was incomplete under Code § 10.1-1408.1(B)(9). DEQ argues that although the application was complete at the time it was submitted, it was rendered incomplete once CVWMA decided not to pursue the requested amendment of the regional solid waste management plan.
Under the Virginia Administrative Process Act, on appeal of an agency decision to a circuit court, that court acts "in a manner 'equivalent to an appellate court's role in an appeal from a trial court.'" Commonwealth ex rel. State Water Control Bd. v. Blue Ridge Envtl. Def. League, Inc., 56 Va. App. 469, 479-80, 694 S.E.2d 290, 295 (2010) (quoting J.P. v. Carter, 24 Va. App. 707, 721, 485 S.E.2d 162, 169 (1997)). The "party complaining of agency action" bears the burden of "demonstrat[ing] an error of law." Code § 2.2-4027.
" Blue Ridge Envtl. Def. League, 56 Va. App. at 480, 694 S.E.2d at 296 (alterations in original) (quoting Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 241, 369 S.E.2d 1, 6 (1988)). "The reviewing court may set the agency action aside, even if it is supported by substantial evidence, if the agency failed to comply with a substantive statutory directive." Browning-Ferris, 254 Va. at 284, 492 S.E.2d at 434.
Where an issue is purely one of statutory interpretation, this Court, like the circuit court, reviews the issue de novo. See Va. Dep't of Health v. NRV Real Estate, LLC, 278 Va. 181, 185, 677 S.E.2d 276, 278 (2009). "'[P]ure statutory interpretation is the prerogative of the judiciary.'" Blue Ridge Envtl. Def. League, 56 Va. App. at 481, 694 S.E.2d at 296 (quoting Mattaponi Indian Tribe v. DEQ ex rel State Water Control Bd., 43 Va. App. 690, 707, 601 S.E.2d 667, 676 (2004)). This is especially true "'if the statutory language is clear.'" Id. (quot...
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