What happens to a Virginia Pollution Abatement permit while an appeal of the permit is pending in court?

Plain-English summary

Senator Vogel asked whether three Virginia Pollution Abatement permits issued by the State Water Control Board in June 2010 were valid. The permits authorized three companies (Recyc Systems, Synagro Technologies, and Nutri-Blend) to land-apply sewage sludge. The AG worked through each one.

For the Nutri-Blend permit: no notice of appeal was filed within the 30-day window required by Supreme Court Rule 2A:2, and no petition for appeal was filed. Those deadlines are mandatory and jurisdictional. The Nutri-Blend permit became a final decision of the Board and stays valid by its terms until expiration or surrender.

For the Recyc and Synagro permits: both companies filed timely appeals in the Culpeper Circuit Court in August 2010. The appeals challenged only one specific provision the Board added requiring the permittee to notify the Board if the land where sludge had been applied is sold within a 38-month period during which certain food crops can't be harvested from sludge-treated land. The appeals didn't otherwise challenge the permits.

Under § 2.2-4028 of the Administrative Process Act, an agency decision under appeal stays in effect unless either the agency postpones the effective date or the court stays operation. Section 2.2-4029 says the court will affirm or dismiss the appeal unless an error of law appears, in which case it will suspend or set aside the agency decision. The AG noted the court had taken no such action in either case. So both permits remained valid and enforceable, except that the specific notice provision being challenged on appeal could be stayed or reversed by the court.

The AG also declined to opine on whether the permits actually complied with the Board's regulations. That's a factual determination, and AG opinion practice avoids both factual questions and matters in active litigation.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Virginia Pollution Abatement regulations governing sewage sludge land application have been amended since 2010 (the Board was actively working on amendments at the time this opinion was issued). The administrative appeal procedures in Title 2.2 are similarly subject to revision. Anyone dealing with a current permit appeal should consult both the current statute and the current regulation.

Common questions

What's land application of sewage sludge?
The practice of spreading treated biosolids from wastewater treatment plants on agricultural fields as a fertilizer or soil amendment. It's a recognized waste-management practice, but it is regulated because of public health and environmental concerns about pathogens, heavy metals, and runoff.

Why was there a 38-month restriction on harvesting food crops?
As the opinion describes it, the 38-month period is the window during which food crops with subsurface harvested parts (root vegetables) may not be harvested from land where certain sludges have been applied. The notice provision being challenged required the permittee to tell the Board if the treated land was sold within that 38-month window.

Why did Recyc and Synagro appeal only the notice provision?
The opinion doesn't get into the merits of the challenge, but the notice requirement was something the Board added during the permit-issuance process rather than something baked into the underlying regulation. Permittees often challenge add-on conditions they consider unauthorized or overreaching, even while accepting the rest of the permit.

Does an appeal automatically pause a permit?
No. Under § 2.2-4028, the default is that the permit stays in effect during the appeal. The agency may, on request or its own motion, postpone the effective date if it deems that justice so requires. The court may also issue a stay, but only on proper application and only when it finds a likelihood of reversible error along with immediate, unavoidable, and irreparable injury.

Who has standing to appeal a sewage sludge permit?
The opinion notes that case decisions may be appealed by any "party aggrieved" under the Administrative Process Act. Whether neighbors, downstream landowners, or local governments qualify depends on facts and the case law interpreting standing.

Background and statutory framework

The substantive permit regime is in § 62.1-44.19:3:

• § 62.1-44.19:3(A)(3). No person shall contract or propose to contract with the owner of a sewage treatment works to land apply, market, or distribute sewage sludge, or do so themselves, without a current Virginia Pollution Abatement Permit.
• § 62.1-44.19:3(B). Requires the Board to adopt regulations ensuring proper treatment, protection of public health and the environment, and prevention of pollution.
• § 62.1-44.19:3(C). Lists ten regulatory categories the Board must address, including site suitability, sampling, recordkeeping, notification of local governing bodies, site-specific nutrient management plans, and public comment procedures.
• 9 Va. Admin. Code § 25-32-310 et seq. The implementing regulations as in effect in 2010.

The appeal procedure is in the Administrative Process Act:

• § 2.2-4001. Defines "case decision." Case decisions may be appealed by any "party aggrieved."
• § 2.2-4028. Permits an agency or court to postpone the effective date or preserve existing status pending review, but only on a showing of likelihood of reversible error and irreparable injury.
• § 2.2-4029. Directs the court to dismiss or affirm absent an error of law as defined in § 2.2-4027.

Procedural deadlines: Supreme Court Rule 2A:2 requires a notice of appeal within 30 days; Rule 2A:4 requires a petition for appeal within 30 days of the notice. These deadlines are mandatory and jurisdictional.

Limits on AG opinions: The AG declined to determine whether the specific permits in fact conformed to the regulation (a factual question) and declined to express an opinion on matters in active litigation.

Citations

• Va. Code § 2.2-505
• Va. Code Ann. § 2.2-4001
• Va. Code Ann. § 2.2-4027
• Va. Code Ann. § 2.2-4028
• Va. Code Ann. § 2.2-4029
• Va. Code Ann. § 10.1-104.2
• Va. Code Ann. § 62.1-44.19:3
• 9 Va. Admin. Code § 25-32-310 et seq.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-084-Vogel.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

October 29, 2010

The Honorable Jill H. Vogel
Member, Senate of Virginia
Post Office Box 2337
Winchester, Virginia 22604

Dear Senator Vogel:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether three Virginia Pollution Abatement permits recently issued by the State Water Control Board (the "Board") are valid.

Response

It is my opinion that one permit is valid and not subject to appeal. The other two are being appealed as to one clause; unless the court should stay, suspend, or set aside one or both of these permits as to that clause, each remains valid and enforceable.

Background

At its June 21-22, 2010 meeting, the Board considered applications from Recyc Systems, Inc. ("Recyc"), Synagro Technologies, Inc. ("Synagro"), and Nutri-Blend, Inc. ("Nutri-Blend") for Virginia Pollution Abatement Permits to land apply sewage sludge. On June 22, 2010, the Board voted to issue the permits.

In each case, the Board adopted findings that concluded

[T]he permit has been prepared in conformance with all applicable statutes, regulations and agency practices;

[T]he limits and conditions in the permit have been established to ensure that pollutant management and land application is performed in a manner that will protect public health and the environment and that the escape, flow or discharge of pollutants into state waters is prevented; and

[A]ll public comments relevant to the permit have been considered.

Recyc and Synagro filed timely appeals. No notice of appeal of the Nutri-Blend permit has been received by the Board, and no petition for appeal has been filed.

The pending appeals challenge a provision the Board added to each draft permit that requires the permittee to notify the Board if the land to which sludge has been applied is sold within the 38-month period during which food crops with subsurface harvested parts may not be harvested from land where certain sludges have been applied. These appeals do not otherwise challenge the validity of the permits.

Applicable Law and Discussion

Section 62.1-44.19:3(A)(3) provides:

No person shall contract or propose to contract, with the owner of a sewage treatment works, to land apply, market or distribute sewage sludge in the Commonwealth, nor shall any person land apply, market or distribute sewage sludge in the Commonwealth without a current Virginia Pollution Abatement Permit authorizing land application, marketing or distribution of sewage sludge and specifying the location or locations, and the terms and conditions of such land application, marketing or distribution. The permit application shall not be complete unless it includes the landowner's written consent to apply sewage sludge on his property.

Section 62.1-44.19:3(B) requires the Board, with the assistance of the Department of Conservation and Recreation and the Department of Health to adopt regulations to ensure that:

(i) sewage sludge permitted for land application ... is properly treated or stabilized; (ii) land application ... of sewage sludge is performed in a manner that will protect public health and the environment; and (iii) the escape, flow or discharge of sewage sludge into state waters, in a manner that would cause pollution of state waters ... shall be prevented.

Section 62.1-44.19:3(C) further requires that those regulations include, among other things,

3. Standards for treatment or stabilization of sewage sludge prior to land application, marketing or distribution;
4. Requirements for determining the suitability of land application sites and facilities used in land application, marketing or distribution of sewage sludge;
5. Required procedures for land application, marketing, and distribution of sewage sludge;
6. Requirements for sampling, analysis, recordkeeping, and reporting in connection with land application, marketing, and distribution of sewage sludge;
7. Provisions for notification of local governing bodies ...;
8. Requirements for site-specific nutrient management plans, which shall be developed by persons certified in accordance with § 10.1-104.2 prior to land application for all sites where sewage sludge is land applied, and approved by the Department of Conservation and Recreation prior to permit issuance under specific conditions; ...
9. Procedures for receiving and responding to public comments on applications for permits and for permit amendments authorizing land application at additional sites.

The current regulations are codified at § 25-32-310 et seq. of Title 9 of the Virginia Administrative Code. The Board now is considering proposed amendments to those regulations, and citizens may participate in the public comment process under the Administrative Process Act.

Section 2.2-4001 of the Virginia Code defines "case decision" as "any agency proceeding or determination that ... a named party ... is ... in compliance with any existing requirement for obtaining or retaining a license or other right or benefit." The Board's June 22, 2010 findings and permit issuance constitute a case decision. Case decisions may be appealed by any "party aggrieved," provided such appeals are taken "in the manner provided by the rules of the Supreme Court of Virginia." Supreme Court Rule 2A:2 requires a party appealing a case decision to file a notice of appeal within thirty days of notice of the decision; Rule 2A:4 requires a petition for appeal to be filed within thirty days of filing of the notice of appeal. These filing deadlines are mandatory and jurisdictional.

Section 2.2-4028 provides:

When judicial review is instituted or is about to be, the agency concerned may, on request of any party or its own motion, postpone the effective date of the regulation or decision involved where it deems that justice so requires. Otherwise the court may, on proper application ..., issue all necessary and appropriate process to postpone the effective dates or preserve existing status or rights pending conclusion of the review proceedings if the court finds the same to be required to prevent immediate, unavoidable, and irreparable injury and that the issues of law or fact presented are not only substantial but that there is probable cause for it to anticipate a likelihood of reversible error in accordance with § 2.2-4027. Actions by the court may include (i) the stay of operation of agency decisions of an injunctive nature or those requiring the payment of money or suspending or revoking a license or other benefit and (ii) continuation of previous licenses in effect until timely applications for renewal are duly determined by the agency.

Section 2.2-4029 provides:

Unless an error of law as defined in § 2.2-4027 appears, the court shall dismiss the review action or affirm the agency regulation or decision. Otherwise, it may compel agency action unlawfully and arbitrarily withheld or unreasonably delayed except that the court shall not itself undertake to supply agency action committed by the basic law to the agency. Where a regulation or case decision is found by the court not to be in accordance with law under § 2.2-4027, the court shall suspend or set it aside and remand the matter to the agency for further proceedings, if any, as the court may permit or direct in accordance with law.

The permits in question were subject to appeal under the Administrative Process Act by a party aggrieved. In the course of an appeal, the court could issue a stay or could suspend or set aside the permit. The court has taken no such action in the instant cases. As such, as regards the Recyc and Synagro permits, unless the Board's decision is stayed as provided in § 2.2-4028 or reversed as provided by § 2.2-4029, that decision remains in effect and the permits remain in effect and enforceable. The Nutri-Blend permit, on the other hand, is a final decision of the Board with no timely appeal taken: the permit is valid by its terms until it expires or until Nutri-Blend might surrender it.

Conclusion

Accordingly, it is my opinion that the Nutri-Blend permit is valid and not subject to appeal; and that, unless the court should stay, suspend, or set aside one or both of the other permits, each remains valid and enforceable.

With kindest regards, I am

Kenneth T. Cuccinelli, II
Attorney General