*1 Salem VIRGINIA, COMMONWEALTH OF ex rel. STATE WATER CONTROL BOARD
v. APPALACHIAN POWER COMPANY
No. 1274-88-3 Decided on December *2 Counsel Butcher,
John R. Attorney (Mary Terry, Assistant General Sue General, briefs), Attorney on for appellant. Rosbe; Williams, (William M. III L. Hunton & on
Joseph Spivey, brief), for appellee.
Opinion COLEMAN, J. The issueon this is whether an adminis- appeal trative (the SWCB), the State Water Control Board fol- agency, lowed the when it enacted two of its statutory requirements water 7, 1987, control standards. On October the SWCB attempted amend its standards to the use of “chlorine or other halo- prohibit *3 20,000 gen compounds” by any discharges that at least facility gallons of effluent into state waters inhabited endan- per day life, gered or threatened of and to a 121 species aquatic designate mile of section the Clinch River as an essential or critical habitat for six of or threatened freshwater in- species endangered mussels Clinch, digenous to the namely: monkeyface Appalachian pearly, birdwing green pearly, fine-rayed pigtoe pearly, blossom mucket pearly, shiny and the pink pearly, pigtoe pearly.
The Power which Appalachian Company (APCo), operates steam electric within the area of the designated power plant Carbo, Clinch River near uses chlorine as Virginia, intermittently an of the amended anti-biofouling agent, adoption appealed standards to the Circuit Court of the Roanoke City Code 62.1-44.24 and 9-6.14:16. The circuit court ruled that the standards were invalid the SWCB failed to hold because standards as amending before the water quality Code The con- required by appeals ruling, 9-6.14:8. SWCB § tending that it satisfied the for an statutory requirement APCo an an eviden- by providing tial that APCo was not hearing; SWCB contends alternatively, harmed the failure to hold For the rea- an evidential follow, sons that we affirm the trial court’s decision. charged SWCB is with the duties to “protect existing high
quality state waters and restore all other state waters to such con- dition of quality that such waters will all any permit reasonable uses and will public support growth of all propagation life . . . aquatic might which reasonably be to inhabit expected them.” 62.1-44.2(1). Code To enforce that the SWCB is policy, § empowered establish standards of water 62.1- quality, § 44.15(3a), them, and to regulations adopt to enforce necessary 62.1-44.15(10). As of a part mandated triennial review of § standards, 62.1-44.15(3a), the SWCB proposed amend its water standards quality restricting the discharge 20,000 chlorine by prohibiting discharges exceeding gallons per day into waters containing trout or threatened or endangered spe- cies. The shelled pearly mussels have been classified endangered under federal and state regulations. 50 C.F.R. 17.11 (1988); 325-01-1, VR 13(6). Studies conducted SWCB had shown that chlorine into discharged the Clinch River is highly toxic to the endangered mussels and that no virtually mussels exist in the Clinch River for approximately miles downstream from the Carbo plant. The SWCB was further concerned about water quality standards from chlorine discharges due to a number of chlorine spills which have occurred on rivers throughout Virginia, causing massive fish kills. 62.1-44.15(3b), part the basic law gov which SWCB,
erns the defines the which the procedure by SWCB may amend its water standards and provides that it shall do so according to the Administrative Process Act (APA), Code 9- APA, 6.14:1 et seq. Under the before a state agency may promul gate a regulation,1 Code 9-6.14:7.1 that it requires guide set lines for soliciting input and of interested into parties the formation and of its development regulations. This stage, which is denominated an informational allows public par ticipation the formation of an agency’s dis policies *4 semination to the public information about A proposals. APA, second requirement Code that provides an agency may conduct formal evidential hearings before exercis ing its authority however, to promulgate regulation; a the Code (10) distinguish “Regulations” and §§ between and “Stan- However, by 62.1-44.3(16) (17). APA, dards” as defined purposes for of the seq., “regulation” 9-6.14:1 et “standard" is a “rule” or as defined in Code 9-§ 6.14:4(F). section also that provides “the shall do so where agency always Thus, the basic law requires hearing.” determining whether an evidential hearing is or the APA mandatory discretionary, pro vides that the basic law governing the shall control. Code SWCB, 62.1-44.15(3a), of the basic law part governing pro , vides the . . board “shall hold as hereinafter hearings provided for the of . . . or purpose adopting, cancelling such modifying, Thus, standards.”2 since the law the SWCB to hold an requires evidential the issue in this case is the meaning term “evidential hearing” whether the SWCB with complied that requirement.
On APCo’s the circuit appeal, court ruled that SWCB failed to hold a formal as its basic required by law and therefore its attempt new water promulgate quality standards and to designate section of the Clinch River aas critical habitat were invalid. The SWCB ruling, that appeals contending that it satisfied the for an evidential requirement hearing because APCo, which had in the informational had participated hearings, a further request but did not Further, do so. the SWCB argues that even if it was required to convene a formal hearing, APCo cannot be heard to be- complain cause it had the to submit evidence as if a formal and, thus, had been convened was not harmed omission.
We recount the taken steps SWCB to or amend its adopt SWCB, water standards. The quality in an effort to comply APA, its basic law and the gave notice to the and inter- public ested that it parties to conduct to solicit planned public hearings comment on amendments to the water proposed standards 1987, for chlorine. In August hearings regarding the pro- standards posed were held in Roanoke and Woodbridge, Williamsburg, Virginia. APCo attended representatives and spoke at the Roanoke hearing. APCo later submitted a 39 written page comment addressing the chlorine standard and proposed designa- tion of outstanding state resource waters. The SWCB closed pub- -44.15(3a) during Assembly pen- 62.1 was amended 1989 Acts dency provide “upon person of this suit to of an effected its own motion, hearings hearings].” SWCB hold [the shall] [evidential 1989, litigation provides pending Acts c. 1. 2 that the act shall not affect to which the party. State Water Control Board is a
259 21, lie on meeting comment on 1987. At its next August quarterly 29, the SWCB series of amendments September adopted pro- review, posed during including triennial the two at issue. 7, 1987, These amendments were on adopted October to become 25, 6, 1987, effective on November 1987. On November APCo filed a notice of to the Circuit Court of the appeal City Roanoke, challenging the board’s new standard for Chlorine Surface (VR 680-21-01.11) Waters and the new designation of State Outstanding (VR 680-21-07.2). Resource Waters On the trial court appeal granted APCo’s motion for summary judgment, holding the SWCB failed to hold an evidential hearing as required by (b) and and 9- §§ 6.14:8. The trial court found the failure to conduct such hearings a reviewable of law as question 9- contemplated by court, 6.14:17. Based on these rulings, the trial to Code the enforcement of suspended the two water stan- dards, aside, set them and remanded the matter to the SWCB for further proceedings. APA,
Under the
interpretation
enforcement of
water
standards
and stream designation
the SWCB
are
valid,
presumed
and the burden is on APCo to rebut this pre
9-6.14:17;
Johnston-Willis,
sumption. See Code
see also
Ltd. v.
231,
Kenley,
243,
1,
6 Va. App.
(1988);
369 S.E.2d
7-8
Bio-Medi
cal Applications
414,
Inc. v.
4
Arlington,
Kenley, Va. App.
426,
722,
358 S.E.2d
(1987);
Roanoke Memorial
v.
Hosp.
Kenley,
599, 603,
3 Va.
525,
App.
352 S.E.2d
527 (1987). How
ever, “[wjhere the issue falls outside the specialized competence
of the agency, such as constitutional and statutory interpretation
issues, little deference is
to be
accorded the
de
agency’s
Johnston-Willis, Ltd.,
cision.”
246,
6 Va.
at
App.
The SWCB’s basic Code 62.1-44.15(3a), specifically § states that it shall “hold hearings” before it its promulgates water standards. Code 9-6.14:4(E) provides: § means
“Hearing” agency other processes than those informa- tional or factual inquires of an informal nature provided in 9-6.14:7.1 and 9-6.14:11 of this and in- chapter cludes (i) only for opportunity to private parties submit fac- tual in proofs formal proceedings as in provided 9-6.14:8 § of this chapter in connection with the making of regulations (ii) or a similar right of private parties requirement of may give and, persons but 'opportunity interested request’ to one if there is no demand therefor, need proceeding.” added.) not undertake such (emphasis a trial-like support position We find no for this provides in the statute agency which that the "shall is, always give do so persons opportunity interested participate’ [that ‘an to in a hearing] evidential requires hearing.” where the mandatory language basic law The requires agency provide which the participate” significantly to “an to is differ- providing ent from request” hearing, “an to upon which transfers the onus fact, private party hearing the to initiate upon agency. the rather than the In the evidential hearing is the vehicle created 9-6.14:8 which § the formal record which serves adopting as the basis for preserved. the standard provides is 9-6.14:8 § promulgate only (i) “shall upon findings [the its of fact based standard] pursuant record of hearing].” evidence made statutory to Where the lan- [the guage unambiguous, is plain meaning clear and of the statute will v. Marsh control. Richmond, 4, 11, 163, City (1987), 234 precedence Va. 360 S.E.2d and take over Revisor’s notes. Furthermore, changes the 1989 require- amendment to Code which ment in the hearings basic law that provide the SWCB “shall" hold that evidential hearings pursuant required only “upon 9-6.14:18 shall be of an affected person” supports the construction that the basic law mandated an evidential Had change merely clarify existing change been provisions law rather than elfecl a that the apply retroactively pending litigation amendment would not would have been Johnson, 141, 223, unnecessary. (1982) (a Wisniewski v. 223 Va. 286 S.E.2d law). presumed change amendment is to be a in as hereof in connec- public agencies provided tion with case decisions. law,
Accordingly, under its basic
the SWCB is
to hold a
formal evidential
to receive
evidence on
any probative
any
relevant fact
to Code
9-6.14:8 before it could exercise
in setting state water
standards.
authority
of the evidential
is further
purpose
explained
which
that while the
is to for
provides
record,
receive
mally
any
evidence into the
it
be
probative
may
limited “to the trial of
legal
factual issues
relevant to the
directly
validity
regulation in
of the relevant
proposed
any
respects
law,
outlined in
9-6.14:17” which involve errors of
including,
to,
law,
but not limited
adher
scope
authority, compliance
ence to procedure, and
of the evidence. The statute de
sufficiency
tails specific obligations for
in
conducting
evidence,
who
cluding
shall
admission of
preside,
including written
material,
for verbatim
requirements
recording
transcription,
record,
availability
notice
general
and au
publication,
*7
thorization that the evidential hearing can be conducted in con
junction with the public
hearing
informational
that
provided
sepa
Thus,
rate records of the
are
proceedings
maintained.
while the
agency may conduct the public informational and evidential hear
ings within the same
the
proceeding,
notice
provided
published
both,
for
provides
the evidential hearing serves the indispensable
function of
preserving
formal record of those issues which are
subject
judicial
to
review under Code
9-6.14:17. See Johnston-
Willis, Ltd.,
241-42,
6-7;
6 Va.
at
App.
369 S.E.2d at
Roanoke
603,
Memorial
3 Va.
Hosp.,
at
clared invalid. Governor Baliles the on 9, 1988, regulations and the September became effective on when the SWCB filed the regulations, pursuant Registrar Regulations. regu- to Code with the Those during pendency lations have appeal. been enforced the of this
The SWCB asserts that even if to hold the eviden it failed law, the tial APA and basic such omission required by its was harmless as error insofar APCo was concerned. The SWCB that argues APCo can demonstrate no harm from the SWCB’s failure to conduct an evidential because APCo attended the informational submitted its written and was report, to provided every submit evidence and advocate its While court position. the trial made a that er specific finding the harmless, ror was not we an hold that when fails con form to required statutory enacting when authority regulations, an party challenge affected with may successfully regulations out that necessity showing it was harmed agency’s failure with the law.5 comply regulation is invalid and the effort it agency’s to enforce exceeds its statutory John authority. ston-Willis, Ltd., 6 Va. at S.E.2d at App. 7-8. Accord we affirm ingly, the trial court’s that the ruling regula SWCB’s tions, 325-01-1, VR (1987) and (1987), VR 680-21-07.2 are invalid unenforceable.
Affirmed. * J., Hodges, concurred.
Koontz, C.J., dissenting.
I with respectfully disagree majority’s interpretation statutory scheme embodied in the statutes which control pertinent the issues presented this I appeal. disagree Specifically, majority determination scheme prior to 1989 amendment of Code imposed upon Water State Control Board (SWCB) a two-step duty promul- gating waters, its standards of for state first to hold public hearings of an informal and (Code informational nature 9-§ 6.14:7.1(B)), and (Code second hold 9- hearings 6.14:8). view, In SWCB my was to hold the public informational to afford an re- hearing APCO quest APCO’s failure to request *8 9-6.14:17(2). hearing required See Code The failure to conduct a evidential promulgating regulations comply authority before is a be failure to and must with distinguished judicial challenge agency failing from in a to an to observe action 9-6.14:17(3). procedure, analysis applies. to which the harmless error Code § See * Judge Hodges participated hearing prior in the of this and decision case date effective of his retirement on October 1989. a to conduct such hearing negated requirement evidential of these short, within the nothing provisions In I find hearing. the SWCB to intent to legislative require reflects a statutes which to do so an without a conduct an evidential Rather, legislative I it was the believe affected or interested party. such a hearing only request. mandate such a intent to 62.1-44.15(3a) pro- At the time of these proceedings, shall, time, but “The Board from time to vided in pertinent part: as pro- three hold every years, hearings at least once hereinafter and, the standards of reviewing quality, vided for the purpose such stan- cancelling or adopting, modifying, as appropriate, “Such stan- added). (3b) Subsection provided: dards.” (emphasis modified, amended or cancelled dards . . . are to be adopted 9- (§ Administrative Process Act in the manner provided by in pertinent part, 6.14:1 et seq.).” provides, an conduct or interested agency “may give persons opportu- a evidential and the nity to in participate public proceeding', a hear- shall do so where the basic law agency always requires Code sections ing.” added). Reading together, these (emphasis in hearings” concludes that the “shall . . . hold majority phrase “the shall coupled phrase in Code 9- hearing” do so where the basic law a always requires 6.14:8 mandates that the SWCB hold an evidential standards, regardless instance that it to amend its every proposes as APCO in this of whether an interested or affected such party, case, a formal Such an requests interpretation evidential would an evidential even the SWCB to conduct require resolved. In might when there be no or issues to be participants view, nor is my legislature, such a result was not intended by an of these statutes. language such interpretation required law, Because the term is not defined in the basic “hearing” is con- (APA) 9-6.14:8 of the Administrative Process Act “shall trolling. always maintains that the mandate majority eviden- do so” in that section refers to “conduct ... only public view, tial do so” always In the mandate “shall proceeding.” my modifies both the mandate to “conduct ... a public “give as well as the mandate interested proceeding” persons If in a proceeding.” participate public “an evidential proceeding” participate the former is means the same as “shall conduct” such a *9 reason, meaningless. For that intended to legislature I believe the give each of the I part separate meaning. a phrase Consequently, interpret the to is re- language mean that the SWCB statutory to hold an evidential the quired an inter- upon request ested person; without such the need not in request, agency engage view, a futile my act. In such an interpretation is consistent is logical and the extention of statutory imposed the requirement the to and upon agency hold informal informational hear- so ing that issues can be raised and identified for which interested could to persons determine an evidential sections, To bolster its of these code interpretation the majority in footnote three draws a distinction between “an to “an to participate” and con- request” hearing, and cludes that the latter to transfers the “onus” the to private party distinction, agree initiate the hearing. disagree I with that but I that such an “onus” offends the scheme within the APA. finds this onus offensive because: majority
the evidential is the vehicle created 9- by § 6.14:8 which by the formal record which serves as the basis for the standard is adopting 9-6.14:8 preserved. pro- vides that the agency “shall promulgate only [the standard] (i) its of fact upon findings based record of evidence upon made to pursuant hearing].” evidential [the view, In my recognizes that an expressly eviden- tial not the only by is vehicle which the basis for adopting the standard may be preserved. made,
Where there is no such record so agency required any necessary facts in be controversy shall determined by minutes, file, court upon basis and records agency of its aug- under proceedings 9-6.14:7.1 or 9-6.14:11 as mented, be, need if order agency pursuant or court allowable and supplemented by any necessary proofs adduced in court ....
Moreover, in addition referring promul- gation of standards an agency of fact based upon findings upon record of evidence made [the hearing] “(i) which provides also that it do so . . . facts of upon taken, judicial may (ii) notice be statements of basis and purpose pro- informational any as well as comment data received or con- (iii) the conclusion ceedings held under 9-6.14:7.1 terms the basic law under which clusions believe, I ex- is These additional provisions, operating.” instances may promul- that the SWCB some recognize pressly review without judicial a record for gate standards preserve hearings. holding conclusion that the majority’s I do not with the
Finally, agree *10 in the 62.1-44.15(3a) change was 1989 amendment to Code § amendment there is a When a statutory basic law. interpreting change to effect a in the legislature that the intended presumption law; however, be rebutted evidence that that presumption may clarify intended to the legislative interpret the amendment was 22.30 at Statutory act. 1A Sutherland Construction original 1985). “When amendments are enacted (C. Sands 4th ed. the origi- soon controversies arise ‘as to the interpretation after act, as a inter- logical regard legislative nal it is the amendment — — original charge rebutting of the act a formal pretation ” Commonwealth, v. change.’ Boyd of substantial presumption 16, 20-21, 1A Suth- 216 Va. 215 S.E.2d 918 (1975)(quoting (C. erland at 184 Sands 4th ed. Statutory Construction 22.30 Further, in- 1972)). of an statute unambiguous amendment “[a]n law, whereas no such is change purpose dicates a purpose an ambiguous pro- indicated the mere fact of an amendment of 22.30 at 266 Statutory vision.” 1A Construction Sutherland (C. 1985). Sands 4th ed. illustrates, to the 1989 amendments
As this appeal prior Moreover, ambiguous. were in Code provisions stan- emergency amendment followed the enactment Baliles, dards, identical virtually Governor which were signed by that in circuit court. We assume may to those declared invalid was mindful of legislature at the time of the amendment the statute to which interpreted revisor’s note to Code § when only was necessary mean that a formal evidential proceeding and was not an interested or affected requested by party change sought in instance that the SWCB mandatory every Thus, view, the leg- the amendment my enacting standards. original language islature intended merely clarify reason, conclusion majority’s act. this I with the disagree For that the amend- stated legislature footnote three because the ment would not affect litigation pending the obvious intent of the amendment was to effect a change in the view, law. In my amendment does not affect pending litigation in any event since it only serves to clarify the prior ambiguous statutory language.
For reasons, the foregoing I respectfully dissent.