Frederick County Business Park, LLC, et al. v. Virginia Department of Environmental Quality et al.

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Frank and Millette
Argued at Alexandria, Virginia
FREDERICK COUNTY BUSINESS PARK, LLC AND
MAYNARD WILLARD
OPINION BY
v. 	Record No. 2315-07-4 	JUDGE LeROY F. MILLETTE, JR.
MAY 20, 2008
VIRGINIA DEPARTMENT OF ENVIRONMENTAL
QUALITY AND DAVID K. PAYLOR, DIRECTOR,
VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUAILTY
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
Steven T. Webster (Aaron S. Book; Webster Book LLP, on briefs),
for appellants.
Kerri L. Nicholas, Assistant Attorney General (Robert F. McDonnell,
Attorney General; Roger L. Chaffe, Senior Assistant Attorney
General; David C. Grandis, Assistant Attorney General, on brief), for
appellees.
Frederick County Business Park (FCBP) appeals from a final judgment of the circuit
court upholding the Virginia Department of Environmental Quality’s (DEQ) classification of its
proposed facility as a materials recovery facility (MRF). On appeal, FCBP argues DEQ
improperly interpreted the solid waste management regulations and the evidence was insufficient
to support DEQ’s findings that the proposed facility is a MRF. Rather, FCBP asserts its
proposed facility is properly classified as a recycling center. Additionally, DEQ appeals the
circuit court’s finding that its March 26, 2007 letter to FCBP was a case decision.
Code § 10.1-1408.1 states, in part, “‘recycling’ means any process whereby material
which would otherwise be solid waste is used or reused, or prepared for use or reuse, as an
ingredient in an industrial process to make a product . . . .” 9 VAC 20-80-10 defines a “materials

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recovery facility” as “a solid waste management facility for the collection, processing and
recovery of material such as metals from solid waste . . . .” We hold DEQ did issue a case
decision and FCBP’s proposed facility does fall within the definition of a MRF. Thus, we affirm
the circuit court’s ruling.
I. Facts and Procedural History
The facts in this appeal are not in dispute. On December 28, 2006, FCBP wrote a letter
to DEQ’s Valley Regional Office, stating its intent to operate a business that would pick up
construction waste, primarily from new home construction, and take it to its facility. When the
construction waste arrived at the facility, FCBP would: recover and recycle concrete for use as
“21A” sub-base for roads, sidewalks, and curb and gutter; recover and prepare corrugated
cardboard for use by remanufacturers of cardboard; recover and prepare mixed paper for use by
remanufacturers of paper; recover and prepare plastics and metal for reuse by others as
ingredients in their industrial processes; recover and prepare wood products for use by others as
ingredients in their industrial processes; and recover and prepare drywall for use by others in the
production of drywall and lime.1
FCBP’s attorney and DEQ’s Valley Regional Office Senior Environmental Engineer,
Rebecca Dietrich (Dietrich), talked via email and set up a meeting for February 12, 2007 to
discuss the matters raised in FCBP’s letter. Prior to the meeting, Dietrich corresponded with
Graham Simmerman (Simmerman), DEQ’s Valley Regional Office Waste Compliance Manager,
and G. Stephen Coe, from DEQ Recycling, regarding FCBP’s proposed facility.
The day before the scheduled meeting, FCBP’s attorney responded to some questions
from Dietrich. The attorney stated FCBP would bring containers of construction waste to the
1 FCBP later amended this list via an email to DEQ, stating that due to current market
conditions, the facility would not be accepting drywall.

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proposed facility, the materials would be separated into groups (wood, paper, corrugated
cardboard, metal, drywall, and concrete) and each of the materials would then be processed.
FCBP’s attorney also stated, “the overwhelming majority of waste [will] be recycled,” and
remaining waste residue, consisting of “Styrofoam, dirt, sod and some debris that is too small to
handle . . . [will] be placed back into the container and taken to the landfill.”
At the meeting, handwritten notes were taken by a DEQ employee. These notes recite
the specific materials FCBP’s proposed facility would handle and each of the materials’
exemptions under the Virginia Administrative Code. The list of materials, along with
exemptions, were written as follows: Concrete: § 20-80-150(E)(2)(a)(14); Corrugated
Cardboard: § 20-80-160(C)(1); Mixed Paper: § 20-80-160(C)(1); Plastics: § 20-80-160(C)(5);
Metal: § 20-80-150(H); Wood: § 20-80-150(K). After the meeting, DEQ prepared a matrix of
all the materials and applicable exemptions. The handwritten notes also stated “[i]nitially, as a
minimum, approximately 70% of material rec’d at fac. will be recycled.”2
Subsequent to the February 12, 2007 meeting, but prior to issuing a written response,
Dietrich sought advice and input regarding the classification of FCBP’s proposed facility from
Simmerman, Paul Farrell, from DEQ’s Office of Waste Permitting, and Amy Owens, Director of
DEQ’s Valley Regional Office. In an email to Dietrich, Simmerman stated that the difference
between a MRF and a recycling center “is a Departmental decision, not strictly a regional
interpretation.”
On March 26, 2007, DEQ mailed FCBP’s attorney a letter detailing the agency’s
determination that the proposed facility would be a MRF and not a recycling center. DEQ found
2 A February 13, 2007 email from Dietrich to Paul Farrell, from DEQ’s Office of Waste
Permitting, recites that “[FCBP’s attorney] stated in the meeting yesterday that, initially 70% of
the waste material that comes to the facility will be recycled, with the hope that a higher
percentage will be recycled in the future. The remaining waste will be landfilled.”

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“a facility that receives mixed wastes for on-site processing into recyclable and unrecyclable
fractions is classified as Materials Recovery Facility (MRF) . . . [n]o specific exclusion from
regulation is provided . . . for a Recycling Facility using the described processes.” The letter also
stated that materials coming to a recycling facility are presorted from waste at the source of
generation, while materials coming to a MRF are not presorted. The letter concluded that
because FCBP’s proposed facility would be a MRF, it needed to submit a permit-by-rule
application.
On May 21, 2007, FCBP appealed to the Fairfax County Circuit Court pursuant to the
Virginia Administrative Process Act (VAPA). On August 24, 2007, the parties appeared before
the trial court on FCBP’s administrative appeal. After conducting a hearing on the merits of the
appeal, the trial court ruled that DEQ’s March 26, 2007 letter to FCBP was a case decision.
Additionally, the trial court upheld DEQ’s finding that FCBP’s proposed facility would
constitute a MRF:
[T]his is an area in which deference is owed to DEQ’s
determination. Its decision about whether this is a recycling plant
or materials recovery plant is a question, I think, within their
specialized expertise and their conclusion that this is more than a
de minimis amount of materials that are not recyclable and that the
30 percent that was discussed would make it a materials recovery
facility I don’t find is arbitrary and capricious, and so I’m going to
defer to the DEQ on this.
This appeal followed.
II. Standard of Review
The VAPA governs appeals from DEQ. Code § 10.1-1457; 9 VAC 20-80-100. The
complaining party bears the burden of proving that an error of law was committed. Code
§ 2.2-4027; Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 241-42, 369 S.E.2d 1, 6-7 (1988).
Thus, DEQ bears the burden of proof on the case decision issue, while FCBP bears the burden of
proof regarding the regulatory interpretation issue.

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Pursuant to the VAPA, factual determinations made by an agency are accorded great
deference. Johnston-Willis, Ltd., 6 Va. App. at 242-43, 369 S.E.2d at 7. “The duty of the court
with respect to issues of fact shall be limited to ascertaining whether there was substantial
evidence in the agency record upon which the agency as the trier of facts could reasonably find
them to be as it did.” Code § 2.2-4027; State Bd. of Health v. Godfrey, 223 Va. 423, 435, 290
S.E.2d 875, 881 (1982).
Correspondingly, an appeal of an agency’s interpretation of its own regulations,
“where the question involves an interpretation which is within the
specialized competence of the agency and the agency has been
entrusted with wide discretion by the General Assembly, the
agency’s decision is entitled to special weight in the courts[, and]
. . . judicial interference is permissible only for relief against the
arbitrary or capricious action that constitutes a clear abuse of
delegated discretion.”
Vasaio v. DMV, 42 Va. App. 190, 196-97, 590 S.E.2d 596, 599 (2004) (quoting Johnston-Willis,
Ltd., 6 Va. App. at 244, 369 S.E.2d at 8).
III. Analysis
A. Case Decision
The first issue presented is whether the trial court erred in finding that DEQ’s March 26,
2007 letter to FCBP was a case decision pursuant to Code §§ 2.2-4001 to 2.2-4023.3 “Case
decision” is defined under Code § 2.2-4001:
[A]ny agency proceeding or determination that, under 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
3 Under Rule 5A:21(b), the appellee can present additional questions to be decided by the
Court of Appeals, so long as they provide a clear and exact reference to the page(s) of the
transcript, written statement, record, or appendix where each additional question was preserved
in the trial court. D’Auria v. D’Auria, 1 Va. App. 455, 461, 340 S.E.2d 164, 167 (1986) (Rule
5A:21 sections (b) and (e) read together allow the appellee to raise questions in his brief that
were not raised by the appellant).

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or (ii) in compliance with any existing requirement for obtaining or
retaining a license or other right or benefit.
DEQ raises several arguments as to why the March 26, 2007 letter cannot be considered a
case decision. DEQ contends the letter was not served upon FCBP as required of case decisions
pursuant to Virginia Supreme Court Rule 2A:2. The relevant part of the Rule states:
Any party appealing from a regulation or case decision shall file,
within 30 days after adoption of the regulation or after service of
the final order in the case decision, with the agency secretary a
notice of appeal signed by him or his counsel. In the event that
service of a case decision upon a party is accomplished by mail, 3
days shall be added to the 30-day period. Service under this Rule
shall be consistent with § 2.2-4023 and, if made by mail, shall be
sufficient if sent by registered or certified mail to the party’s last
address known to the agency.
Rule 2A:2 (emphasis added).
Code § 2.2-4023 reads “[t]he terms of any final agency case decision, as signed by it,
shall be served upon the named parties by mail unless service otherwise made is duly
acknowledged by them in writing.” (Emphasis added). Code § 2.2-4023 clearly holds a case
decision can be properly served by mail. DEQ’s March 26, 2007 letter was mailed to FCBP’s
attorney and, therefore, the method of service meets the requirements under Virginia law. See
Garraghty v. Virginia Ret. Sys., 45 Va. App. 1, 8, 608 S.E.2d 477, 480 (2005) (holding that a
letter from the agency to appellant was not precluded from being considered a case decision even
though it was addressed to appellant’s attorney).
Further, DEQ argues the employee who wrote the letter, Dietrich, did not have authority
from the agency to make a case decision and, thus, the letter was merely a response from a staff
member to a public inquiry. However, the record belies this argument and shows that Dietrich
did have authority to issue a case decision. In an email from Simmerman, DEQ’s Valley
Regional Office Waste Compliance Manager, to Dietrich regarding FCBP’s proposed facility, he
stated the proposed definitions of a MRF and recycling center “[are] a Departmental decision,

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not strictly a regional interpretation.” Additionally, Simmerman informed Dietrich that the letter
to FCBP “has been redrafted and approved by the regional management.” Further, the letter took
over a month to compose and was edited and approved by various members of DEQ’s
management. Thus, Dietrich appears to have had authority to issue a case decision. Importantly,
DEQ bore the burden of proof on this issue and failed to submit any evidence that proved
Dietrich lacked the requisite authority to write a case decision for DEQ.
DEQ’s final three arguments revolve around the meaning of an “informal fact finding
proceeding” as defined by the Code:
Agencies shall ascertain the fact basis for their decisions of cases
through informal conference or consultation proceedings unless the
named party and the agency consent to waive such a conference or
proceeding to go directly to a formal hearing. Such conference-
consultation procedures shall include rights of parties to the case
to (i) have reasonable notice thereof, (ii) appear in person or by
counsel or other qualified representative before the agency or its
subordinates, or before a hearing officer for the informal
presentation of factual data, argument, or proof in connection with
any case, (iii) have notice of any contrary fact basis or information
in the possession of the agency that can be relied upon in making
an adverse decision, (iv) receive a prompt decision of any
application for a license, benefit, or renewal thereof, and (v) be
informed, briefly and generally in writing, of the factual or
procedural basis for an adverse decision in any case.
Code § 2.2-4019(A) (emphasis added).
DEQ claims no informal fact finding proceeding took place because it did not assign a
presiding officer to oversee the February 12, 2007 meeting. However, the statute provides not
solely for a “hearing officer,” but also allows the party to appear “before the agency or its
subordinates.” Code § 2.2-4019(A)(ii). It is clear from the record the February 12, 2007
meeting took place between FCBP’s attorney and a couple of DEQ employees, Dietrich and
Greg Adamson. Therefore, DEQ’s argument regarding the lack of a presiding officer has no
merit.

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DEQ argues that because no exhibits were prepared prior to the meeting, it could not be
considered an informal fact finding proceeding. Nowhere in Code § 2.2-4019(A) does it state an
agency must prepare exhibits prior to an informal fact finding proceeding; thus, this argument
must also fail.
Finally, DEQ contends that prior to the meeting, it failed to send FCBP “notice of any
contrary fact[s]” as required by Code § 2.2-4019(A)(iii). While the Code does contain this
language, it is preceded by the phrase, “[s]uch conference-consultation procedures shall include
rights of parties to the case to.” Code § 2.2-4019(A) (emphasis added). Therefore, the
requirement that DEQ provide FCBP with notice of contrary facts is a right that only FCBP may
assert. As FCBP concedes that the February 12, 2007 meeting was an informal fact finding
proceeding, it has waived any rights under Code § 2.2-4019(A) and, thus, DEQ cannot assert
these rights on FCBP’s behalf. Based on the plain meaning of the statutory and case law, the
circuit court did not err in finding DEQ’s March 26, 2007 letter to FCBP was a case decision.
Kenley v. Newport News Gen. & Non- Sectarian Hosp. Ass’n, 227 Va. 39, 41-45, 314 S.E.2d 52,
53-56 (1984) (holding an agency letter to appellant was a case decision when, prior to publishing
the letter, the parties participated in a meeting, appellant submitted extensive data to the agency
about the proposed facility, and the letter applied the agency’s rules and regulations to the
specific facts of appellant’s case).
B. Definition of “Recycling” and “Materials Recovery Facility”
The legislature created DEQ to consolidate the functions of the Department of Waste
Management, the State Water Control Board, the Department of Air Pollution Control, and the
Council on the Environment. Code § 10.1-1183. DEQ is specifically authorized to supervise
and control solid waste management activities within the Commonwealth. Code § 10.1-1402(1).
Pursuant to the Solid Waste Management Regulations, DEQ “promulgates and enforces

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regulations that it deems necessary to protect the public health, public safety, the environment,
and natural resources.” 9 VAC 20-20-50.
“‘Statutes addressing the same subject are to be read in pari materia [that is, they should
be] “read, construed and applied together so that the legislature’s intention can be gathered from
the whole of the enactments.”’” Vasaio, 42 Va. App. at 199, 590 S.E.2d at 600 (quoting Alger v.
Commonwealth, 19 Va. App. 252, 256, 450 S.E.2d 765, 767 (1994)). Guided by this principle,
we turn to the parties’ arguments involving Code § 10.1-1408.1 and 9 VAC 20-80-10, -150,
-160, and -360.
As previously stated, we review with deference DEQ’s findings of fact and interpretation
of the solid waste management regulations. FCBP contends the DEQ case decision found the
proposed facility would be engaged in activities defined as “recycling”:
No permit shall be required pursuant to this section for recycling
or for temporary storage incidental to recycling. As used in this
subsection, “recycling” means any process whereby material
which would otherwise be solid waste is used or reused, or
prepared for use or reuse, as an ingredient in an industrial process
to make a product, or as an effective substitute for a commercial
product.
Code § 10.1-1408.1(J) (emphasis added). DEQ counters that FCBP’s reading of Code
§ 10.1-1408.1(J) is too narrow, failing to take into account all of the facts and additional
regulations relating to this issue. Pursuant to 9 VAC 20-80-10, a MRF is defined as “a solid
waste management facility for the collection, processing and recovery of material such as metals
from solid waste . . . .” DEQ’s case decision found that FCBP planned to truck discarded

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materials from new home construction sites to the proposed facility and then remove recyclable
materials from this waste for use or reuse.4 The Code specifically defines “construction waste”
as “solid waste.” 9 VAC 20-80-10 (“[c]onstruction waste means solid waste which is produced
or generated during construction, remodeling, or repair of pavements, houses, commercial
buildings, and other structures”). Thus, the facility falls squarely within the definition of a MRF
as FCBP planned to use the facility to reclaim recyclable materials from solid waste.
FCBP responds it would be impossible for the proposed facility to be a MRF because all
of the materials it would handle are either defined as non-solid wastes or are conditionally
exempt from being considered solid waste. 9 VAC 20-80-150 (specifically stating that wood,
concrete, and metal are not solid wastes); 9 VAC 20-80-160 (conditionally exempting as solid
waste paper, paper products, and plastic); 9 VAC 20-80-360 (“The regulations of this section [on
MRFs] do not apply to . . . [t]he storage and treatment facilities associated with the management
of materials conditionally exempt from this chapter on the basis of 9 VAC 20-80-160 C.”). DEQ
argues that FCBP intends to bring solid waste to the facility and then separate out the items
specifically enumerated above. Thus, DEQ found these recyclable materials (wood, concrete,
metal, paper products, and plastic) do not become exempt or excluded from regulation until after
they are separated from all of the incoming solid waste. FCBP counters that if any percentage of
the material is recyclable, then all of the material, recyclable and non-recyclable, is exempt from
regulation.
4 DEQ’s case decision stated:
[T]he proposed Facility intends to divert construction waste
(primarily from new home construction) from the waste disposal
stream for use, reuse, or preparation for use or reuse by others, as
an ingredient in industrial processes to make various products.
Various marketable materials will be separated at the Facility from
incoming mixed construction wastes and stored in on-site
containers for subsequent off-site use or reuse.

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FCBP’s contention would lead to an absurd result, with parties completely exempt from
DEQ regulations when they reclaim and recycle just 1% of materials from solid waste. DEQ has
the authority to regulate waste disposal in the interest of public health, safety, and the
environment; therefore, we review DEQ’s interpretation of the solid waste management
regulations with deference. The record supports DEQ’s finding that approximately 30% of the
materials coming to FCBP’s facility will be non-recyclable.5 Therefore, DEQ did not act in an
arbitrary or capricious manner when it determined more than a de minimis amount of solid waste
would come to the facility and, therefore, found the facility would be operating as a MRF.
IV. Conclusion
For the reasons stated herein, we hold the circuit court properly found DEQ did issue a
case decision to FCBP. Furthermore, we affirm the circuit court’s ruling upholding DEQ’s
determination that FCBP’s proposed facility would be a MRF.
Affirmed.
5 We give judicial deference to DEQ’s findings of fact. Godfrey, 223 Va. at 435, 290
S.E.2d at 881. In a February 11, 2007 email, FCBP’s attorney stated while “the overwhelming
majority of waste will be recycled,” the residue, consisting of “Styrofoam, dirt, sod and some
debris that is too small to handle . . . will be placed back into the container and taken to the
landfill.” A DEQ employee’s notes from the February 12, 2007 meeting recite that FCBP stated,
“[i]nitially, as a minimum, approximately 70% of material rec’d at fac. will be recycled.” A
February 13, 2007 email from Dietrich recited, “[FCBP’s attorney] stated in the meeting
yesterday that, initially 70% of the waste material that comes to the facility will be recycled, with
the hope that a higher percentage will be recycled in the future. The remaining waste will be
landfilled.”