May Department Stores Company v CW, DEQ & Treacy

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Elder
Argued at Richmond, Virginia
MAY DEPARTMENT STORES COMPANY
OPINION BY
v. 	Record No. 0820-98-2 	JUDGE LARRY G. ELDER
APRIL 27, 1999
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF ENVIRONMENTAL QUALITY
AND DENNIS H. TREACY, DIRECTOR
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
John S. Hahn (Monica S. Desai; William C.
Wood; Michael S. Ewing; Sonnenschein, Nath &
Rosenthal; Rawlings & Wood, on briefs), for
appellant.
John R. Butcher, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The May Department Stores Company (appellant) appeals a
decision of the circuit court dismissing its administrative
appeal of a decision by the Commonwealth’s Department of
Environmental Quality (DEQ). 	Appellant had sought reimbursement
from the Petroleum Storage Tank Fund (Tank Fund)1 for certain
environmental clean-up efforts. 	Upon DEQ’s denial of its
1Code §§ 62.1-44.34:10 through 62.1-44.34:13 govern the
establishment and administration of the Tank Fund under the
direction of the State Water Control Board (Board). 	DEQ is
empowered to implement regulations of the Board and administer
funds appropriated to it. 	See Code §§ 10.1-1185, 10.1-1186.

request, appellant appealed to the circuit court pursuant to the
Virginia Administrative Process Act (VAPA), Code §§ 9-6.14:1
through 9-6.14:25, but the circuit court ruled appellant “ha[d]
no right of appeal of the reimbursement decision” and dismissed
the appeal. 	The sole issue for our review is whether the VAPA
provides appellant a right of appeal to the circuit court from
DEQ’s denial of its request for reimbursement from the Tank
Fund. 	We hold that it does, and we remand the case to the
circuit court for further proceedings.
The law at issue here, the State Water Control Law,
codified at Title 62.1, Chapter 3.1, expressly permits judicial
review under the VAPA of any regulation promulgated by the State
Water Control Board (Board). 	See Code § 62.1-44.24. 	The State
Water Control Law also provides expressly for judicial review of
certain decisions made pursuant to Articles 2, 3 and 4 of that
law:
Any owner aggrieved by, or any person
who has participated . . . in the public
comment process related to, a final decision
of the [State Water Control] Board under
§§ 62.1-44.15(5), 62.1-44.15 (8a), (8b), and
(8c), 62.1-44.16, 62.1-44.17, 62.1-44.19 or
§ 62.1-44.25, whether such decision is
affirmative or negative, is entitled to
judicial review thereof in accordance with
the provisions of the Administrative Process
Act . . . if such person meets the standard
for obtaining judicial review of a case or
controversy pursuant to Article III of the
United States Constitution.
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Code § 62.1-44.29 (art. 5). 	The cited code sections all relate
to the Board’s authority to issue certificates allowing the
discharge of certain waste products and the right of “[a]ny
owner aggrieved by, or any person who has participated . . . in
the public comment process related to,” certain decisions
regarding issuance of such certificates to petition the Board
for a hearing. 	Article 11 of the State Water Control Law, which
governs the Board’s regulation of the discharge of oil into
waters of the Commonwealth, contains a provision stating that
the VAPA shall govern the Board’s activities and proceedings but
expressly limits them to proceedings “under this article.” 	Code
§ 62.1-44.34:22. 	Although the statutes governing the Tank Fund
also are contained in this chapter, in Article 10, they make no
mention of judicial review or the VAPA.
The law, therefore, provides expressly that appeals from
certain regulations and decisions of the Board shall be governed
by the VAPA, see Code §§ 62.1-44.24, 62.1-44.29, 62.1-44.34:24,
but it does not indicate whether, or under what conditions,
appeals may be taken from other actions of the Board, such as
decisions made regarding the Tank Fund. 	DEQ contends that only
those decisions of the Board listed in the State Water Control
Law’s specific appeals provision, Code § 62.1-44.29, are
appealable under the VAPA. 	Appellant contends that DEQ’s
position would render the VAPA’s provisions virtually
meaningless and that the VAPA must, therefore, govern agency
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action even where the agency’s basic law does not expressly so
state, as long as such application is not expressly excluded.
To ascertain whether agency actions pursuant to the Tank Fund
are subject to judicial review, we examine the purpose and
provisions of the VAPA.
We previously have observed that “the General Assembly has
chosen to waive explicitly the sovereign immunity of agencies in
general . . . for certain suits brought pursuant to the [VAPA]
. . . .” 	Virginia Bd. of Med. v. Virginia Physical Therapy
Assoc., 13 Va. App. 458, 465, 413 S.E.2d 59, 63-64 (1991),
aff’d, 245 Va. 125, 427 S.E.2d 183 (1993). 	The VAPA provides
for judicial review of rules and regulations promulgated, and
case decisions issued, by administrative agencies. 	See Code
§§ 9-6.14:3, 9-6.14:16. 	Its purpose is “to supplement present
and future basic laws2 conferring authority on agencies either to
make regulations or decide cases as well as to standardize court
review thereof save as laws hereafter enacted may otherwise
expressly provide.” 	Code § 9-6.14:3 (footnote added). 	The VAPA
“does not supersede or repeal additional procedural requirements
in such basic laws,” id., and it expressly exempts certain
2The VAPA defines “basic laws” as the “provisions of the
Constitution and statutes of the Commonwealth of Virginia
authorizing an agency to make regulations or decide cases or
containing procedural requirements therefor.” 	Code § 9-6.14:4.
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agencies and agency actions from its provisions, see Code
§ 9-6.14:4.1.
Thus, the VAPA is intended to be a default
or catch-all source of administrative due
process, applicable whenever the basic law
fails to provide process. 	In summary, the
VAPA governs an agency’s actions except
where that agency’s basic law provides its
own due process or where the VAPA expressly
exempts a particular agency or its actions.
School Bd. v. Nicely, 12 Va. App. 1051, 1060, 408 S.E.2d 545,
550 (1991) (citation omitted). 	We interpret these statements to
mean that where an agency’s basic law provides expressly for
VAPA coverage of certain proceedings under specified conditions
and makes no provision for judicial review of other proceedings,
the unmentioned proceedings are subject to the VAPA unless
otherwise expressly excluded. 	Compare id. at 1058-61, 408
S.E.2d at 549-50 (holding that where basic law provides right of
judicial review but does not specify statute of limitations,
judicial review provisions satisfy due process and VAPA’s
statute of limitations does not apply); Environmental Defense
Fund v. State Water Control Bd., 12 Va. App. 456, 462, 404
S.E.2d 728, 731 (1991) (holding that appeal of Board decision
rendered under earlier version of Code § 62.1-44.29 was governed
by the specific standing requirement of that provision rather
than the more general standing provision of the VAPA’s Code
§ 9-6.14:16).
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Here, in keeping with these principles, a careful analysis
of the VAPA’s exclusion provisions leads us to conclude that the
General Assembly intended to permit judicial review of decisions
of the Board in administering the Tank Fund. 	As outlined above,
the VAPA lists certain “agency actions otherwise subject to [the
VAPA] . . . [which] are excluded from the operation of Article 2
[of the VAPA].” 	Code § 9-6.13:4.1(C). 	Among those actions
excluded are those involving “[g]eneral permits issued by the
State Water Control Board pursuant to the State Water Control
Law (§ 62.1-44.2 et seq.), Chapter 24 (§ 62.1-242 et seq.) of
Title 62.1 and Chapter 25 (§ 62.1-254 et seq.) of Title 62.1 if
the Board [satisfies certain notice, comment and hearing
requirements].” 	Code § 9-6.14:4.1(C)(12). 	This code section
specifically indicates that the provisions it excludes from the
operation of Article 2 are those which would “otherwise [be
fully] subject to [the VAPA].” 	Id. (emphasis added).
Under DEQ’s theory, the only portions of the State Water
Control Law that are subject to the VAPA are those specifically
listed in the State Water Controls Law’s Code § 62.1-44.29.
However, none of the statutes listed in § 62.1-44.29 involves
the “[g]eneral permits” referred to in the VAPA’s exclusion
provisions; instead, the statutes listed in § 62.1-44.29 involve
certificates. 	Other sections of the State Water Control Law,
however, do provide for the issuance of general permits. 	See
Code § 62.1-44.15:5.2 (“General permits for ready-mix concrete
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plant discharges”); Code § 62.1-44.17:1 (“General permits for
confined animal feeding operations”). 	To hold that the VAPA
does not apply to these general permit statutes would render
meaningless the portion of the VAPA’s Code § 9-6.14:4.1(C)(12)
referring to “[g]eneral permits issued by the State Water
Control Board pursuant to the State Water Control Law
(§ 62.1-44.2 et seq.).” 	Therefore, absent application of the
exclusion in Code § 9-6.14:4.1(C)(12), these general permit
statutes would be fully covered by the provisions of the VAPA.
Nothing in the VAPA or the State Water Control Law
specifically lists these general permit statutes as subject to
appeal under the VAPA. 	Therefore, any agency action rendered
under the State Water Control Law must be subject to appeal
under the VAPA if the action otherwise meets the VAPA’s criteria
for judicial review and is not subject to any other statutory
exclusion.3
3DEQ also points to the General Assembly’s 1986 amendment of
Code § 9-6.14:16 to remove language in the VAPA which had
provided a right of appeal under the VAPA in the absence of a
right in the basic law. 	We rejected this analysis in Nicely, in
which we held as follows:
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[T]he revision merely changed the form of
the statute rather than its substance since
the revision simply deleted superfluous
language whose import is embodied in Code
§ 9-6.14:3, which states the VAPA’s purpose.
The substance of the deleted language was
that if a basic law does not create process
for aggrieved persons to appeal agency
decisions, the VAPA process for court review
is applicable. 	In other words, the VAPA

The fact that Code § 62.1-44.29 specifically mentions
judicial review of Board decisions rendered under only a limited
number of statutes does not compel the conclusion that the
General Assembly intended only those decisions to be reviewable.
Rather, that code section sets out a test different from the
VAPA’s for determining who has standing to seek review of such
decisions. 	Code § 62.1-44.29 provides that an “owner aggrieved
by, or any person who has participated . . . in the public
comment process related to,” a decision rendered under one of
the enumerated statutes is entitled to review under the VAPA if
the “person meets the standard for obtaining judicial review of
a case or controversy pursuant to Article III of the United
States Constitution.” 	That standard requires proof that
(i) such person has suffered an actual or
imminent injury which is an invasion of a
legally protected interest and which is
concrete and particularized; (ii) such
injury is fairly traceable to the decision
of the Board and not the result of the
independent action of some third party not
before the court; and (iii) such injury will
likely be redressed by a favorable decision
by the court.
Id.
The VAPA, by contrast, provides a right of review to “[a]ny
person affected by and claiming the unlawfulness of any
supplements a basic law that lacks process
for review of agency decisions. 	See Code
§ 9-6.14:3.
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12 Va. App. at 1060, 408 S.E.2d at 550.

regulation, or party aggrieved by and claiming unlawfulness of a
case decision.” 	Code § 9-6.14:16 (emphases added). 	“Case
decision” is defined as
any 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 or (ii) in compliance with any
existing requirement for obtaining or
retaining a license or other right or
benefit.
Code § 9-6.14:4. 	A comparison of these provisions reveals that
the requirements for judicial review of agency decisions
specified in Code § 62.1-44.29 are more stringent than those
under the VAPA. 	See Environmental Defense Fund, 12 Va. App. at
462, 404 S.E.2d at 731 (noting that “‘owner aggrieved’
requirement [in earlier version of Code § 62.1-44.29] is a more
restrictive standard than ‘person affected’ or ‘party aggrieved’
[in Code § 9-6.14:16]”); see also Town of Fries v. State Water
Control Bd., 13 Va. App. 213, 217-18, 409 S.E.2d 634, 637 (1991)
(applying “owner aggrieved” provision of earlier version of Code
§ 62.1-44.29 to determine standing).
DEQ concedes that appellant’s appeal, if covered by the
VAPA, is a case decision under the above definition. 	It
contends, however, that the remedy appellant seeks nevertheless
exempts it from the scope of the Act, which prohibits “[a]gency
action relating to [1] [m]oney or damage claims against the
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Commonwealth or agencies thereof” and “[4] [g]rants of state or
federal funds or property.” 	Code § 9-6.14:4.1(B)(1), (4). 	We
disagree.
Monies held in the Tank Fund originate from expenses and
penalties recovered pursuant to various provisions of state and
federal law, fees levied on fuel sold, delivered and used in the
Commonwealth, and interest earned on monies in the Fund. 	See
Code §§ 62.1-44.34:11, 62.1-44.34:13. 	Code § 62.1-44.34:11 uses
the terms “[d]isbursements” and “reimbursements”
interchangeably. 	It provides that “[d]isbursements” from the
Tank Fund may be made for certain “[r]easonable and necessary
per occurrence costs incurred . . . [for] corrective action,”
“containment and cleanup,” see Code § 62.1-44.34:11(A)(2)
(emphasis added), but it specifically limits “funds . . . paid
for reimbursement of costs incurred for corrective action or
containment and cleanup” under certain circumstances, see Code
§ 62.1-44.34:11(A)(3), (4), (5), (7) (emphasis added), and it
provides that “[n]o funds shall be paid from the Fund unless a
reimbursement claim has been filed” within a specified time
period, see Code § 62.1-44.34:11(A)(10) (emphasis added).
We hold that reimbursements from the Fund are neither
“money or damage claims” nor “grants” under the VAPA. 	Money
claims are “claims [for which] money is directly payable on
contract express or implied,” such as “claims for the price of
goods sold, for money lent, [or] for arrears in rent.” 	Black’s
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Law Dictionary 1005 (6th ed. 1990). 	Because no express or
implied contract for payment existed between appellant and DEQ
or the Board, appellant’s request for reimbursement is not a
“money claim” under the VAPA.4
Appellant’s request for reimbursement also is not a “damage
claim” under the VAPA. 	“Damages” are defined as “[a] pecuniary
compensation or indemnity, which may be recovered in the courts
by any person who has suffered a loss, detriment, or injury,
whether to his person, property, or rights, through the unlawful
act or omission or negligence of another. 	A sum of money
awarded to a person injured by the tort of another.” 	Id. at
389; see Lumberman’s Mut. Cas. Co. v. Keller, 249 Va. 458, 461,
456 S.E.2d 525, 526 (1995). 	Appellant’s request for
reimbursement from the Tank Fund as provided by statute for
costs appellant allegedly incurred in taking corrective
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4Although the Commonwealth is not subject to suit for money
claims under the VAPA, the Supreme Court has held that it may be
held liable “upon valid contracts entered into by duly
authorized agents of the government” and may not assert the
defense of sovereign immunity in such cases. 	See Wiecking v.
Allied Medical Supply Corp., 239 Va. 548, 551-53, 391 S.E.2d
258, 260-61 (1990). 	The legislature has provided a procedure
elsewhere in the Code for bringing money or contract claims
against the Commonwealth. 	See, e.g., Code § 2.1-223.1
(providing for presentation of pecuniary claim against the
Commonwealth to head of department or agency responsible for
alleged act or omission supporting claim); Code § 8.01-192
(providing for review in circuit court of claims disallowed
under Code § 2.1-223.1 and other sections); see also Wiecking,
239 Va. at 552, 391 S.E.2d at 261. 	Therefore, even if
appellant's request for reimbursement were classified as a money
claim, appellant would not necessarily be without a remedy.

environmental clean-up action is not a damage claim under this
definition. 	Appellant did not seek any damages flowing from
DEQ’s allegedly wrongful or tortious action. 	Appellant did not
seek any damages flowing from DEQ’s allegedly wrongful or
tortious action in denying the reimbursement request, but only
the reimbursement itself. 	Therefore, the request does not
constitute a damage claim.
Finally, appellant’s request for reimbursement is not a
request for a “grant,” as that term is used in the VAPA. 	A
grant is defined as money or property gifted, bestowed or
conferred on another, with or without compensation. 	See Black’s
Law Dictionary 699. 	DEQ urges us to construe the word “grant”
to include a reimbursement from the Tank Fund. 	However,
“[where] the intention of the legislature is perfectly clear
from the language used [in a statute], rules of construction are
not to be applied. 	We are not allowed to construe that which
has no need of construction.” 	Temple v. City of Petersburg, 182
Va. 418, 422-23, 29 S.E.2d 357, 358 (1944). 	We find that the
word “grant” as used in the VAPA requires no construction
because the legislature’s use of this term in the State Water
Control Law makes clear that it does not include Tank Fund
reimbursements.
The legislature expressly included the term “grant” in Code
§ 62.1-230, a provision of the State Water Control Law which
permits the Board, “in its discretion,” to approve the use of
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money from the Virginia Water Facilities Revolving Fund “to make
grants or appropriations to local governments.” 	The legislature
demonstrated clearly in Code § 62.1-230 that it knew how to use
the term “grant” to describe a discretionary gift or award of
money, and it did not use this term in describing the Board’s
authority to make payments from the Tank Fund, which it referred
to as reimbursements rather than grants. 	Therefore, the funds
appellant seeks in this proceeding do not constitute a grant
under the VAPA.
For these reasons, we hold that the VAPA provides a right
to judicial review of DEQ’s denial of a request for
reimbursement under the Tank Fund. 	Therefore, we remand this
matter to the circuit court for further proceedings consistent
with this opinion.
Reversed and remanded.
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