COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia

RESIDENTS INVOLVED IN SAVING THE
ENVIRONMENT, INC., ET AL.

v. Record No. 1407-95-2 OPINION BY
JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA/ JUNE 18, 1996
DEPARTMENT OF ENVIRONMENTAL
QUALITY AND PETER W. SCHMIDT,
DIRECTOR

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge

Clarence M. Dunnaville, Jr. (Henry L. Marsh,
III; Harold M. Marsh; David S. Bailey; Hill,
Tucker & Marsh, on briefs), 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), for intervener Browning-Ferris
Industries of South Atlantic, Inc.

Residents Involved in Saving the Environment, Inc.
(Residents) 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. 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). 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, which is likely either to be
defeated or diminished by the plaintiff's
claim, in such case he has an immediate
interest in resisting the demand, and all
persons who have such immediate interests are
necessary parties to the suit."

Id. at 90-91, 465 S.E.2d at 818 (quoting Raney v. Four Thirty
Seven Land Co., 233 Va. 513, 519-20, 357 S.E.2d 733, 736 (1987)).
However, the instant case is distinguishable from Asch and other
cases applying the "necessary party" analysis because the Rules
governing an administrative appeal under the VAPA are specific to
the nature of the Act. In appeals under the VAPA, the only
parties required to be a part of the case are those listed in
Rule 2A:1(b). Thus, because BFI was not a "party" as defined in
Rule 2A:1(b) and BFI was allowed to intervene in the case to
protect its interests, the circuit court did not err in refusing
to dismiss the appeal.
TIMELY OBJECTION TO VENUE
Additionally, BFI asserts that the circuit court erred in
finding that an intervener has no right to object to venue.
In a letter opinion dated January 31, 1994, the trial court
denied BFI's motion to change venue and stated as follows:
There has been a question in the Court's
mind whether an intervenor can object to
venue. The Court decides that in this case
the intervenor cannot. . . . Rule 2:15 . . .
state[s] that as to the petitioner the rules
applicable to bills and subpoenas apply and
as to the parties the rules applicable to
defendants apply. This puts BFI in the
position of plaintiff and the parties as
defendants who would file responsive
pleadings.

Since the original defendant, DEQ,
failed to object to venue that motion is lost
to the case because there is no other party
defendant, including BFI as intervenor,
present in the case to object to venue under
the terms of [Code] 8.01-264.

Code 8.01-264(A) provides, in pertinent part, as follows:
Venue laid in forums other than those
designated by this chapter shall be subject
to objection, but no action shall be
dismissed solely on the basis of venue if
there be a forum in the Commonwealth where
venue is proper. In actions where venue is
subject to objection, the action may
nevertheless be tried where it is commenced,
and the venue irregularity shall be deemed to
have been waived unless the defendant objects
to venue by motion filed, as to actions in
circuit courts, within twenty-one days after
service of process commencing the action, or
within the period of any extension of time
for filing responsive pleadings fixed by
order of the court.

(Emphasis added). In appeals under the VAPA, "[u]nless the
parties otherwise agree, . . . the venue for agency or court
proceedings shall be as specified in subdivision 1 of
8.01-261." Code 9-6.14:5.
Rule 2:15 governs intervention of new parties and provides
as follows:
A new party may by petition filed by
leave of court assert any claim or defense
germane to the subject matter of the suit.

All provisions of these Rules applicable
to bills and subpoenas, except those
provisions requiring payment of writ tax and
clerk's fees, shall apply to such petitions;
and all provisions of these Rules applicable
to defendants shall apply to the parties on
whom such petitions are served.

"Generally speaking, an intervenor is held to take the case as he
finds it . . . ." Newport News Shipbuilding & Dry Dock Co. v.
Peninsula Shipbuilders' Ass'n, 646 F.2d 117, 122 (4th Cir. 1981).
We hold that the circuit court did not err in denying BFI's
motion to change venue because no defendant filed a timely
objection to venue. The original defendant, the Department,
failed to object to venue within twenty-one days of Residents
commencing the appeal as required by Code 8.01-264 and thus
waived any venue objection. BFI intervened in the case after the
twenty-one-day period for objecting to venue had passed. Thus,
no timely objection to venue was filed. To hold otherwise would
allow an intervener to object to venue at a late stage of the
proceedings, thus interrupting the flow of the trial. Because
no timely objection to venue was filed, the circuit court
properly denied BFI's motion to change venue.
DETERMINATION REQUIREMENT UNDER CODE 10.1-1408.1(D)
Residents argue that the Director violated Code
10.1-1408.1(D) when he issued the landfill permit to BFI
without determining that the facility posed "no substantial
present or potential danger to human health or the
environment." The Director and the Department assert that the
issuance of the permit represented the Director's implicit
determination that the landfill posed "no substantial . . .
danger to human health or the environment."
In 1992, the General Assembly consolidated several state
agencies, including the Department of Waste Management, and
created the Department of Environmental Quality. Code
10.1-1183. The statutorily mandated policy of the Department
is "to protect the environment of Virginia in order to promote
the health and well-being of the Commonwealth's citizens." Id.
The purposes of the Department include "coordinat[ing] permit
review and issuance procedures to protect all aspects of
Virginia's environment," Code 10.1-1183(2), and "promot[ing]
environmental quality through public hearings and expeditious and
comprehensive permitting, inspection, monitoring, and enforcement
programs." Code 10.1-1183(10).
Under the Virginia Waste Management Act (the Act), the
Department is responsible for insuring that "[n]o person . . .
operate[s] any sanitary landfill or other facility for the
disposal, treatment or storage of nonhazardous solid waste
without a permit from the Director." Code 10.1-1408.1(A).
No permit for a new solid waste
management facility shall be issued until the
Director [of the Department] has determined,
after investigation and evaluation of
comments by the local government, that the
proposed facility poses no substantial
present or potential danger to human health
or the environment. The Department shall
hold a public hearing within the said county,
city or town prior to the issuance of any
such permit for the management of
nonhazardous solid waste.

Code 10.1-1408.1(D) (emphasis added). See also Concerned
Taxpayers of Brunswick County v. County of Brunswick, 249 Va.
320, 328, 455 S.E.2d 712, 716 (1995) (holding that determining
compliance with the Act's provisions is the function of the
Director, "who issues the permit required for the operation of a
sanitary landfill or other like facility, after determining that
the proposed facility poses no substantial danger to human health
or the environment"). Any permit issued by the Director "shall
contain such conditions or requirements as are necessary to
comply with the requirements of this Code and the regulations of
the [Virginia Waste Management] Board and to prevent a
substantial present or potential hazard to human health and the
environment." Code 10.1-1408.1(E).
The Act provides that "[a]ny person aggrieved by a final
decision of the Board or Director under this chapter shall be
entitled to judicial review thereof in accordance with the
Administrative Procedure Act." Code 10.1-1457. In an appeal
under the VAPA, "[t]he burden is upon the party complaining of
the agency action to demonstrate an error of law subject to
review." Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 241,
369 S.E.2d 1, 6 (1988) (citing Code 9-6.14:17). Code 9-
6.14:17 lists the issues of law subject to review:
(i) accordance with constitutional right,
power, privilege, or immunity, (ii)
compliance with statutory authority,
jurisdiction limitations, or right as
provided in the basic laws as to subject
matter, the stated objectives for which
regulations may be made, and the factual
showing respecting violations or entitlement
in connection with case decisions, (iii)
observance of required procedure where any
failure therein is not mere harmless error,
and (iv) the substantiality of the evidential
support for findings of fact.

"[W]here the legal issues require a determination by the
reviewing court whether an agency has, for example, accorded
constitutional rights, failed to comply with statutory authority,
or failed to observe required procedures, less deference is
required and the reviewing courts should not abdicate their
judicial function and merely rubber-stamp an agency
determination." Johnston-Willis, 6 Va. App. at 243, 369 S.E.2d
at 7-8 (emphasis added). "Agency action, even when 'supported by
substantial evidence,' must be set aside if judicial review
reveals a failure '. . . to comply with statutory authority.'"
Environmental Defense Fund, Inc. v. Virginia State Water Control
Bd., 15 Va. App. 271, 278, 422 S.E.2d 608, 612 (1992).
"[A] legal issue involving statutory interpretation . . . is
within the specialized competence of the courts rather than the
administrative agency." Johnston-Willis, 6 Va. App. at 247, 369
S.E.2d at 10. "A primary rule of statutory construction is that
courts must look first to the language of the statute. If a
statute is clear and unambiguous, a court will give the statute
its plain meaning." Loudoun County Dep't of Social Servs. v.
Etzold, 245 Va. 80, 85, 425 S.E.2d 800, 802 (1993).
We hold that the Director failed to comply with Code
10.1-1408.1(D) in issuing the permit to BFI. Code
10.1-1408.1(D) clearly specifies that no permit for solid waste
management shall be issued until the Director has made a
determination or finding that the proposed facility poses "no
substantial present or potential danger to human health or the
environment." The record shows that the Director and the
Department's staff reviewed the permit application, drafted a
permit, held a public hearing concerning the draft permit,
received public comments on the draft permit, made changes to the
draft permit, and responded in writing to the public's concerns.
However, before issuing the permit neither the Director nor the
Department's staff made the finding that the facility posed "no
substantial . . . danger to human health or the environment," not
even in the permit itself. The Director and the Department
concede that no such determination in writing appears in the
record, but assert that the Director implicitly made that
determination by issuing the permit.
Because the Department's main policy is "to protect the
environment of Virginia in order to promote the health and well-
being of the Commonwealth's citizens," Code 10.1-1183, we hold
that the issuance of the permit alone was insufficient to satisfy
the statutory mandate of Code 10.1-1408.1(D), and that an
explicit determination of "no substantial present or potential
danger to human health or the environment" was required. Thus,
the case is remanded to the trial court with instructions to
remand the matter to the Director to consider the record already
presented and make the required determination.
Accordingly, the circuit court's rulings on the Department's
dismissal motion and BFI's change of venue motion are affirmed.
We reverse the court's affirmance of the permit issuance, and remand to the trial court for remand to the Director to make the
required determination concerning BFI's permit application.
Affirmed in part,
reversed in part,
and remanded.

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