                      COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia


RESIDENTS INVOLVED IN SAVING THE
 ENVIRONMENT, INC., ET AL.

v.         Record No. 1407-95-2                   OPINION BY
                                         JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA/                       JUNE 18, 1996
 DEPARTMENT OF ENVIRONMENTAL
 QUALITY AND PETER W. SCHMIDT,
 DIRECTOR

             FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Melvin R. Hughes, Jr., Judge

              Clarence M. Dunnaville, Jr. (Henry L. Marsh,
              III; Harold M. Marsh; David S. Bailey; Hill,
              Tucker & Marsh, on briefs), for appellants.

              Deborah Love Feild, Assistant Attorney
              General (James S. Gilmore, III, Attorney
              General, on brief), for appellees.

              Timothy G. Hayes (Clayton L. Walton;
              Williams, Mullins, Christian & Dobbins, on
              brief), for intervener Browning-Ferris
              Industries of South Atlantic, Inc.



         Residents Involved in Saving the Environment, Inc.
           1
(Residents) appeal the circuit court's decision affirming the
Department of Environmental Quality's (the Department) issuance

of a sanitary landfill permit to Browning-Ferris Industries of

South Atlantic, Inc. (BFI).       Residents argue that the Director of

the Department (Director) violated Code § 10.1-1408.1(D) by
     1
     Residents Involved in Saving the Environment, Inc. is an
organization of persons residing and/or owning property near the
proposed landfill site in King and Queen County, Virginia. Other
appellants include several named individuals, a church, and a
farming corporation.
issuing the permit without making the required, specific

determination that the proposed facility posed "no substantial

present or potential danger to human health or the environment."

 The Department asserts that:    (1) by issuing the permit, the

Director implicitly made the required determination under Code

§ 10.1-1408.1(D), and (2) because Residents failed to name BFI as

a party in the notice of appeal or to serve it with the petition

for appeal, the appeal should have been dismissed.    BFI, as an

intervener, argues that the court erred in denying its motion to

change venue.    We affirm the circuit court's decision as to the

Department's motion to dismiss and BFI's motion to change venue.

 However, we reverse the circuit court's decision to affirm the

permit's issuance because the record fails to show that the

Director made the required determination under Code
§ 10.1-1408.1(D).
                              BACKGROUND

        On September 18, 1990, BFI filed a notice of intent with the

Department to initiate the application process for a permit to

build a landfill in King and Queen County. 2   BFI also filed a

local certification that the proposed location and operation of

the landfill complied with local ordinances, as required by Code

§ 10.1-1408.1(B)(1). 3   On February 4, 1991, BFI submitted Part A
    2
     The record in this case consists of a written statement of
facts pursuant to Rule 5A:8(c).
    3
     Code § 10.1-1408.1(B)(1) requires that a permit application
contain "[c]ertification from the governing body of the county,
city or town in which the facility is to be located that the



                                   2
of its permit application, which contained information concerning

whether the proposed site was suitable for the proposed use and

addressing the siting criteria required by the Virginia Solid

Waste Management Regulations (SWMR).   The Department's staff

reviewed Part A and approved it on July 29, 1991.   On March 20,

1992, BFI submitted Part B of its application, addressing

facility design, construction, and operation.   The Department's

technical staff reviewed Part B, made numerous revisions to the

original proposal, and determined that the application complied

with the SWMR.
     The Department subsequently prepared a draft permit and held

a public hearing on March 24, 1993, with the public comment

period extended to April 5, 1993.    The Department's staff

received comments on the draft permit, made changes based on

these comments before recommending that the Director approve the

permit, and responded in writing to many of the issues raised

during the public comment period.    On June 2, 1993, the Director

issued the permit to BFI.   Prior to issuing the permit, the

Director made no explicit finding or determination that the

proposed facility posed "no substantial present or potential

danger to human health or the environment," as required by Code

§ 10.1-1408.1(D).

     On July 30, 1993, Residents appealed the permit's issuance


location and operation of the facility are consistent with all
applicable ordinances."



                                 3
to the Circuit Court for the City of Richmond, arguing that the

Director "failed to investigate whether the construction and/or

operation of the landfill will create an adverse impact or a

present or potential hazard to human health."   Residents also

argued that the Director was required to make the specific

determination that the landfill posed no "substantial present or

potential danger to human health or the environment."     In their

appeal, Residents named only the Department and the Director as

parties.   BFI later intervened in the appeal and moved to

transfer the case to King and Queen County, the preferred venue

under Code § 8.01-261(1).   The circuit court denied the motion.

After hearing oral argument on October 20, 1994, the circuit

court issued a letter opinion on May 4, 1995, finding that:    (1)

Code § 10.1-1408.1(D) did not impose an independent duty of

investigation on the Director, and (2) the Director's action in

issuing the permit complied "with the applicable regulations or

law governing the concerns the appellant[s] raise[]."
            NECESSARY PARTIES IN ADMINISTRATIVE APPEALS

     The Department argues that the circuit court should have

dismissed Residents' appeal because they failed to name BFI as a

party in the notice of appeal and failed to serve BFI with the

petition for appeal.

     In its letter opinion of November 5, 1993, the circuit court

refused to dismiss Residents' appeal and determined that "BFI

[did] not fit the definition of 'party' as used in Rules 2A:2 and




                                 4
2A:4."

     Appeals pursuant to the Virginia Administrative Process Act

(VAPA), Code §§ 9-6.14:1 to 9-6.14:25, are governed by Part 2A of

the Rules of the Supreme Court of Virginia.     Rule 2A:1(c).   Rule

2A:1(b) provides, in pertinent part, as follows:
          The term "party" means any person affected by
          and claiming the unlawfulness of a regulation
          or a party aggrieved who asserts a case
          decision is unlawful and any other affected
          person or aggrieved person who appeared in
          person or by counsel at a hearing, as defined
          in § 9-6.14:4 E, with respect to the
          regulation or case decision as well as the
          agency itself.

(Emphasis added).   A "rule" or "regulation" under the VAPA is

"any statement of general application, having the force of law,

affecting the rights or conduct of any person, promulgated by an

agency in accordance with the authority conferred on it by

applicable basic laws."   Code § 9-6.14:4(F).   In contrast, the

VAPA defines the term "case" or "case decision" as follows:
          any agency proceeding or determination that,
          under the 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(D).   The Reviser's Notes to Code § 9-6.14:4

indicate that the primary distinction between regulations and

case decisions is that regulations are "legislative" or "quasi-

legislative" in nature and that case decisions serve a "judicial"


                                 5
or "quasi-judicial" function.    Code § 9-6.14:4, Reviser's Notes

D.     See also Kenley v. Newport News General & Non-Sectarian Hosp.

Ass'n, Inc., 227 Va. 39, 44, 314 S.E.2d 52, 55 (1984) ("[T]he

'heart' of a case decision 'is a fact determination respecting

compliance with law.'" (quoting Code § 9-6.14:4, Reviser's Notes

D)).    Under the VAPA, the term "hearing" refers to the following:
            agency processes other than those
            informational or factual inquiries of an
            informal nature provided in 9-6.14:7.1 and
            9-6.14:11 of this chapter and includes only
            (i) opportunity for private parties to submit
            factual proofs in formal proceedings as
            provided in 9-6.14:8 of this chapter in
            connection with the making of regulations or
            (ii) a similar right of private parties or
            requirement of public agencies as provided in
            9-6.14:12 hereof in connection with case
            decisions.

Code § 9-6.14:4(E).

       Any party appealing an agency case decision must file its

notice for appeal within thirty days of the final order in the

case decision.    Rule 2A:2 provides, in pertinent part, as

follows:
             The notice of appeal shall identify the . . .
             case decision appealed from, shall state the
             names and addresses of the appellant and of
             all other parties and their counsel, if any,
             shall specify the circuit court to which the
             appeal is taken, and shall conclude with a
             certificate that a copy of the notice of
             appeal has been mailed to each of the
             parties. . . . The omission of a party whose
             name and address cannot, after due diligence,
             be ascertained shall not be cause for
             dismissal of the appeal.


       Within thirty days after filing the notice of appeal, the



                                   6
appellant must file his petition for appeal with the clerk of the

circuit court.   Rule 2A:4(a).   "Such filing shall include all

steps provided in Rules 2:2 and 2:3 to cause a copy of the

petition to be served (as in the case of a bill of complaint in

equity) on the agency secretary and on every other party."     Id.

     We agree with the circuit court and hold that BFI is not a

"party" as defined in Rule 2A:1(b) and as used in Part 2A of the

Rules of the Supreme Court of Virginia.   BFI is not "a person

affected by and claiming the unlawfulness of a regulation"

because:   (1) an agency case decision, not an agency regulation,

is at issue in this case; and (2) BFI does not assert that the

Director's issuance of the permit was unlawful.   As the company

that benefitted from the agency's granting of the landfill

permit, BFI is also not "a party aggrieved who asserts a case

decision is unlawful."   Additionally, BFI is not "any other

affected person or aggrieved person who appeared in person or by

counsel at a hearing" because it is undisputed that no "hearing"

as defined in Code § 9-6.14:4(E) was held concerning BFI's permit

request.
     Additionally, the Department argues that BFI was a

"necessary party," relying on Asch v. Friends of the Community of
the Mt. Vernon Yacht Club, 251 Va. 89, 465 S.E.2d 817 (1996).      In

Asch, the Supreme Court of Virginia defined "necessary party":
          "Where an individual is in the actual
          enjoyment of the subject matter, or has an
          interest in it, either in possession or
          expectancy, which is likely either to be
          defeated or diminished by the plaintiff's


                                  7
          claim, in such case he has an immediate
          interest in resisting the demand, and all
          persons who have such immediate interests are
          necessary parties to the suit."


Id. at 90-91, 465 S.E.2d at 818 (quoting Raney v. Four Thirty

Seven Land Co., 233 Va. 513, 519-20, 357 S.E.2d 733, 736 (1987)).

However, the instant case is distinguishable from Asch and other

cases applying the "necessary party" analysis because the Rules

governing an administrative appeal under the VAPA are specific to

the nature of the Act.   In appeals under the VAPA, the only

parties required to be a part of the case are those listed in

Rule 2A:1(b).   Thus, because BFI was not a "party" as defined in

Rule 2A:1(b) and BFI was allowed to intervene in the case to

protect its interests, the circuit court did not err in refusing

to dismiss the appeal.
                     TIMELY OBJECTION TO VENUE

     Additionally, BFI asserts that the circuit court erred in

finding that an intervener has no right to object to venue.

     In a letter opinion dated January 31, 1994, the trial court

denied BFI's motion to change venue and stated as follows:
               There has been a question in the Court's
          mind whether an intervenor can object to
          venue. The Court decides that in this case
          the intervenor cannot. . . . Rule 2:15 . . .
          state[s] that as to the petitioner the rules
          applicable to bills and subpoenas apply and
          as to the parties the rules applicable to
          defendants apply. This puts BFI in the
          position of plaintiff and the parties as
          defendants who would file responsive
          pleadings.

               Since the original defendant, DEQ,
          failed to object to venue that motion is lost


                                 8
             to the case because there is no other party
             defendant, including BFI as intervenor,
             present in the case to object to venue under
             the terms of [Code] § 8.01-264.


        Code § 8.01-264(A) provides, in pertinent part, as follows:
                  Venue laid in forums other than those
             designated by this chapter shall be subject
             to objection, but no action shall be
             dismissed solely on the basis of venue if
             there be a forum in the Commonwealth where
             venue is proper. In actions where venue is
             subject to objection, the action may
             nevertheless be tried where it is commenced,
             and the venue irregularity shall be deemed to
             have been waived unless the defendant objects
             to venue by motion filed, as to actions in
             circuit courts, within twenty-one days after
             service of process commencing the action, or
             within the period of any extension of time
             for filing responsive pleadings fixed by
             order of the court.


(Emphasis added).     In appeals under the VAPA, "[u]nless the

parties otherwise agree, . . . the venue for agency or court

proceedings shall be as specified in subdivision 1 of

§ 8.01-261." 4   Code § 9-6.14:5.
    4
     Code § 8.01-261(1) designates the preferred venue for appeals
of state administrative decisions:

                  1. In actions for review of, appeal
             from, or enforcement of state administrative
             regulations, decisions, or other orders:
                  a. If the moving or aggrieved party is
             other than the Commonwealth or an agency
             thereof, then [venue lies in] the county or
             city wherein such party:
                  (1) Resides;
                  (2) Regularly or systematically conducts
                  affairs or business activity; or
                  (3) Wherein such party's property
                  affected by the administrative action is
                  located.

Residents concede that the preferred venue for the appeal was in


                                    9
        Rule 2:15 governs intervention of new parties and provides

as follows:
                  A new party may by petition filed by
             leave of court assert any claim or defense
             germane to the subject matter of the suit.

                  All provisions of these Rules applicable
             to bills and subpoenas, except those
             provisions requiring payment of writ tax and
             clerk's fees, shall apply to such petitions;
             and all provisions of these Rules applicable
             to defendants shall apply to the parties on
             whom such petitions are served.

"Generally speaking, an intervenor is held to take the case as he

finds it . . . ."     Newport News Shipbuilding & Dry Dock Co. v.

Peninsula Shipbuilders' Ass'n, 646 F.2d 117, 122 (4th Cir. 1981).

        We hold that the circuit court did not err in denying BFI's

motion to change venue because no defendant filed a timely

objection to venue.    The original defendant, the Department,

failed to object to venue within twenty-one days of Residents

commencing the appeal as required by Code § 8.01-264 and thus

waived any venue objection.    BFI intervened in the case after the

twenty-one-day period for objecting to venue had passed.        Thus,

no timely objection to venue was filed.    To hold otherwise would

allow an intervener to object to venue at a late stage of the
                                                          5
proceedings, thus interrupting the flow of the trial.         Because

the Circuit Court of King and Queen County.

    5
     We do not reach the question of whether an intervener would be
allowed to object to venue within the twenty-one-day period.
Resolution of that issue is unnecessary to this appeal because no
timely objection was made.



                                  10
no timely objection to venue was filed, the circuit court

properly denied BFI's motion to change venue.
         DETERMINATION REQUIREMENT UNDER CODE § 10.1-1408.1(D)

        Residents argue that the Director violated Code

§ 10.1-1408.1(D) when he issued the landfill permit to BFI

without determining that the facility posed "no substantial

present or potential danger to human health or the environment." 6

 The Director and the Department assert that the issuance of the

permit represented the Director's implicit determination that the

landfill posed "no substantial . . . danger to human health or
    6
     Residents' additional argument that the Director was required
to consider the character of the land affected is without merit.
Code § 10.1-1408.1(I) provides as follows:

                  No person shall allow waste to be
             disposed of on his property without a permit.
              Any person who removes trees, brush, or other
             vegetation from land used for agricultural or
             forestal purposes shall not be required to
             obtain a permit if such material is deposited
             or placed on the same or other property of the
             same landowner from which such materials were
             cleared. The Board shall by regulation
             provide for other reasonable exemptions from
             permitting requirements for the disposal of
             trees, brush and other vegetation when such
             materials are removed for agricultural or
             forestal purposes.
                  When promulgating any regulation pursuant
             to this section, the Board shall consider the
             character of the land affected, the density of
             population, the volume of waste to be
             disposed, as well as other relevant factors.

(Emphasis added). Thus, the statute plainly states that the
Director is required to consider the character of the land only
when promulgating regulations providing for other exemptions
concerning the disposal of vegetation.




                                   11
the environment."

     In 1992, the General Assembly consolidated several state

agencies, including the Department of Waste Management, and

created the Department of Environmental Quality.   Code

§ 10.1-1183.   The statutorily mandated policy of the Department

is "to protect the environment of Virginia in order to promote

the health and well-being of the Commonwealth's citizens."     Id.

The purposes of the Department include "coordinat[ing] permit

review and issuance procedures to protect all aspects of

Virginia's environment,"   Code § 10.1-1183(2), and "promot[ing]

environmental quality through public hearings and expeditious and

comprehensive permitting, inspection, monitoring, and enforcement

programs."   Code § 10.1-1183(10).
     Under the Virginia Waste Management Act (the Act), the

Department is responsible for insuring that "[n]o person . . .

operate[s] any sanitary landfill or other facility for the

disposal, treatment or storage of nonhazardous solid waste

without a permit from the Director." Code § 10.1-1408.1(A).
               No permit for a new solid waste
          management facility shall be issued until the
          Director [of the Department] has determined,
          after investigation and evaluation of
          comments by the local government, that the
          proposed facility poses no substantial
          present or potential danger to human health
          or the environment. The Department shall
          hold a public hearing within the said county,
          city or town prior to the issuance of any
          such permit for the management of
          nonhazardous solid waste.


Code § 10.1-1408.1(D) (emphasis added).   See also Concerned



                                12
Taxpayers of Brunswick County v. County of Brunswick, 249 Va.

320, 328, 455 S.E.2d 712, 716 (1995) (holding that determining

compliance with the Act's provisions is the function of the

Director, "who issues the permit required for the operation of a

sanitary landfill or other like facility, after determining that

the proposed facility poses no substantial danger to human health

or the environment").   Any permit issued by the Director "shall

contain such conditions or requirements as are necessary to

comply with the requirements of this Code and the regulations of

the [Virginia Waste Management] Board and to prevent a

substantial present or potential hazard to human health and the

environment."   Code § 10.1-1408.1(E).
     The Act provides that "[a]ny person aggrieved by a final

decision of the Board or Director under this chapter shall be

entitled to judicial review thereof in accordance with the

Administrative Procedure Act."   Code § 10.1-1457.   In an appeal

under the VAPA, "[t]he burden is upon the party complaining of

the agency action to demonstrate an error of law subject to

review."   Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 241,

369 S.E.2d 1, 6 (1988) (citing Code § 9-6.14:17).    Code § 9-

6.14:17 lists the issues of law subject to review:
          (i) accordance with constitutional right,
          power, privilege, or immunity, (ii)
          compliance with statutory authority,
          jurisdiction limitations, or right as
          provided in the basic laws as to subject
          matter, the stated objectives for which
          regulations may be made, and the factual
          showing respecting violations or entitlement
          in connection with case decisions, (iii)



                                 13
          observance of required procedure where any
          failure therein is not mere harmless error,
          and (iv) the substantiality of the evidential
          support for findings of fact.


"[W]here the legal issues require a determination by the

reviewing court whether an agency has, for example, accorded

constitutional rights, failed to comply with statutory authority,

or failed to observe required procedures, less deference is

required and the reviewing courts should not abdicate their

judicial function and merely rubber-stamp an agency

determination."   Johnston-Willis, 6 Va. App. at 243, 369 S.E.2d

at 7-8 (emphasis added).   "Agency action, even when 'supported by

substantial evidence,' must be set aside if judicial review

reveals a failure '. . . to comply with statutory authority.'"

Environmental Defense Fund, Inc. v. Virginia State Water Control

Bd., 15 Va. App. 271, 278, 422 S.E.2d 608, 612 (1992).

     "[A] legal issue involving statutory interpretation . . . is

within the specialized competence of the courts rather than the

administrative agency."    Johnston-Willis, 6 Va. App. at 247, 369

S.E.2d at 10.   "A primary rule of statutory construction is that

courts must look first to the language of the statute.    If a

statute is clear and unambiguous, a court will give the statute

its plain meaning."   Loudoun County Dep't of Social Servs. v.

Etzold, 245 Va. 80, 85, 425 S.E.2d 800, 802 (1993).

     We hold that the Director failed to comply with Code

§ 10.1-1408.1(D) in issuing the permit to BFI.   Code

§ 10.1-1408.1(D) clearly specifies that no permit for solid waste



                                 14
management shall be issued until the Director has made a

determination or finding 7 that the proposed facility poses "no

substantial present or potential danger to human health or the

environment."   The record shows that the Director and the

Department's staff reviewed the permit application, drafted a

permit, held a public hearing concerning the draft permit,

received public comments on the draft permit, made changes to the

draft permit, and responded in writing to the public's concerns.

 However, before issuing the permit neither the Director nor the

Department's staff made the finding that the facility posed "no

substantial . . . danger to human health or the environment," not

even in the permit itself.   The Director and the Department

concede that no such determination in writing appears in the

record, but assert that the Director implicitly made that

determination by issuing the permit.
       Because the Department's main policy is "to protect the

environment of Virginia in order to promote the health and well-

being of the Commonwealth's citizens," Code § 10.1-1183, we hold

that the issuance of the permit alone was insufficient to satisfy

the statutory mandate of Code § 10.1-1408.1(D), and that an

explicit determination of "no substantial present or potential

danger to human health or the environment" was required.     Thus,

the case is remanded to the trial court with instructions to
   7
     "Determination" is defined as "[t]he decision of a court or
administrative agency" and is synonymous with "finding." Black's
Law Dictionary 450 (6th ed. 1990).




                                 15
remand the matter to the Director to consider the record already

presented and make the required determination.

     Accordingly, the circuit court's rulings on the Department's

dismissal motion and BFI's change of venue motion are affirmed.

We reverse the court's affirmance of the permit issuance, and




                               16
remand to the trial court for remand to the Director to make the

required determination concerning BFI's permit application.
                                             Affirmed in part,
                                             reversed in part,
                                             and remanded.




                               17
