FREDERICK COUNTY BUSINESS PARK, LLC, ET AL. v. VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY, ET AL.
Record No. 081175
SUPREME COURT OF VIRGINIA
JUNE 4, 2009
Prеsent: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and Goodwyn, JJ., and Lacy, S.J.
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal from a Court of Appeals’ judgment sustaining the decision of the Virginia Department of Environmental Quality (DEQ) we consider whether the DEQ‘s decision that a facility proposed by Frederick County Business Park, LLC (FCBP), was a materials recovery facility (MRF) subject to the permitting requirements of the Virginia Solid Waste Management Regulations,
FACTS
The facts are not in dispute. FCBP planned to collect construction waste in сontainers placed primarily at new home construction sites. The full containers would be taken to FCBP‘s proposed facility where marketable matеrials would be separated from the construction waste and stored in on-site containers for subsequent use or reuse. The materials FCBP planned to sepаrate for recycling purposes included concrete, corrugated cardboard, mixed paper, plastics, metal, and wood.1 FCBP estimated that 70% of the construction waste received at the facility would be prepared for recycling and the remaining 30% would be transferred to a permitted landfill for disposal.
In December 2006, FCBP wrote a “courtesy” letter to the DEQ describing the operation of its proposed facility and stating its
The DEQ replied by letter dated March 26, 2007, stating that although FCBP аssumed that no permit was required, a facility that receives “mixed wastes for on-site processing into recyclable and unrecyclable fractions” as рroposed by FCBP is a MRF as defined in
The DEQ noted that a “MRF receives mixed waste loads and extracts the recycle materials fraction from the waste prior to the transfer of the waste residuum for disposal.” The DEQ concluded that FCBP was therefore required to obtain a permit and meet the requirements of the Virginia Sоlid Waste Management Regulations for its proposed facility.
FCBP unsuccessfully appealed the DEQ‘s decision to the Circuit Court of Fairfax County and the Court of Appeals of Virginia. Both tribunals held that the record supported the DEQ‘s factual finding that approximately 30% of the materials coming to the proposed facility would be non-recyclable, and that the DEQ‘s conclusion that the proposed facility was a MRF was not arbitrary or capricious. Frederick County Bus. Park, LLC v. Virginia Dep‘t of Envtl. Quality, 52 Va. App. 40, 52, 660 S.E.2d 698, 704 (2008).
DISCUSSION
In its appeal to this Court, FCBP again asserts that in requiring a permit for the proposed facility, the DEQ improperly interpreted the Virginia Solid Wastе Management Regulations and
The DEQ responds that construction waste is defined as solid wаste,
correctly concluded that the proposed facility was a MRF and was not exempt from the permit requirement.
In reviewing agency decisions, we apply the following standards of review. The agency‘s factual findings must be sustained if the record contains substantial evidence to support those findings.
The General Assembly has authorized the DEQ to supervise and control solid waste management activities and to promulgate regulations applicable to such activities.
be solid waste is . . . prepared for use or reuse,” there is no statute or regulation that defines “recycling facility.” Furthermore no regulation or statute addresses a situation, like the one in issue, where a facility separates materials some of which, but not all, will be recycled.
Considering the relevant statutes and regulations, the DEQ concluded that a permit was required for FCBP‘s proposed facility because the activities of the proposed facility fall within the definition of a MRF and 30% of the construction material received would remain solid waste and not be recycled or reused. Furthermore, as the DEQ argued, the materials deemed exempt or not subject to permitting requirements enter the proposed facility as construction waste and do not acquire an “exempt” status until they are separated into recyclable or reusable materials at the facility.
FCBP‘s position at its core is that no permit is required if some of the materials received at its facility will be prepared for use or reuse. Adopting this position would allow a facility to avoid the permitting requirement as long as any portion of the solid waste material it received was processed for recycling or reuse and in this case would allow the proposed facility to avoid the permitting requirement even though approximately one-third of the wastе material it receives will not be recycled.
Under these circumstances, we cannot say that the conclusion reached by the DEQ was arbitrary or capricious resulting in an abuse of its delegated discretion. Accordingly, we will affirm the judgment of the Court of Appeals.
Affirmed.