                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Annunziata
Argued at Alexandria, Virginia


MAY DEPARTMENT STORES COMPANY
                                          MEMORANDUM OPINION * BY
v.   Record No. 3356-01-2              JUDGE JERE M. H. WILLIS, JR.
                                               AUGUST 6, 2002
COMMONWEALTH OF VIRGINIA,
 DEPARTMENT OF ENVIRONMENTAL QUALITY
 AND THOMAS L. HOPKINS (NOW
 ROBERT G. BURNLEY), DIRECTOR


             FROM THE CIRCUIT COURT OF HENRICO COUNTY
                      George F. Tidey, Judge

          John S. Hahn (Julie Anna Potts; William C.
          Wood; Michael Ewing; Mayer, Brown, Rowe &
          Maw; Rawlings & Wood, on briefs), for
          appellant.

          (Jerry W. Kilgore, Attorney General; Roger L.
          Chaffe, Senior Assistant Attorney General;
          John K. Byrum, Jr., Assistant Attorney
          General, on brief), for appellee.


     May Department Stores Company ("May") appeals the judgment of

the trial court affirming a Department of Environmental Quality

("DEQ") denial of reimbursement for soil removal undertaken as a

result of a petroleum release.   May contends that the trial court

erred in affirming the decision because (1) DEQ relied on post hoc

rationales on appeal, and (2) DEQ's decision was arbitrary and

capricious and not supported by substantial evidence.   For the


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
following reasons, we reverse the judgment of the trial court and

order the case remanded to DEQ for further consideration.

                            I.    BACKGROUND

        On March 30 and April 5, 1993, May reported to DEQ the

discovery of petroleum releases at the Hecht's Distribution

Center in Henrico County, where May's contractors were removing

underground storage tanks.       Two tanks had been removed and were

intact.    However, the surrounding soil was visibly contaminated,

apparently from the release of fuel oil.

        By letter dated April 2, 1993, DEQ directed May to submit

an initial abatement measure report ("IAR") and a site

characterization report ("SCR").      The letter explained that

DEQ's review of the SCR would determine whether "further actions

and/or a Corrective Action Plan" would be required.      On April 5,

1993, May's contractor sought guidance from DEQ as to the extent

of the necessary cleanup.    Without receiving a directive or site

visit by DEQ, May's contractor began removing visibly

contaminated soil for offsite disposal.

        On April 21, 1993, in a teleconference with May's

consultant, DEQ directed May to remove visibly contaminated

soil.    This directive was unqualified as to volume or scope, and

made no reference to the water table.      May's IAR and SCR

documented the removal of visibly contaminated soils.

Photographs of the site excavation confirmed such.      In response

to May's IAR and SCR, DEQ approved closure of the site, noting,

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"this investigation is considered closed" and that "corrective

action is not required."   Thus, May's efforts satisfied all

cleanup requirements and no Corrective Action Plan was required.

     May applied for reimbursement from the Virginia Petroleum

Storage Tank Fund ("Tank Fund") of approximately $600,000 in

costs expended on the site cleanup.     See Code § 62.1-44.34:11; 9

VAC 25-590-210.   DEQ authorized reimbursement of $76,706.30 and

denied reimbursement of $525,592.30.    Its reasons for the denial

included:   (1) May's incorrect application of DEQ's "usual and

customary rates"; (2) DEQ's need for additional documentation

for certain costs; and (3) May's failure to justify the

necessity of certain actions.

     May sought reconsideration.   It reduced its claim to comply

with DEQ's uniform customary rates and sought reimbursement of

$420,979.63 of the $525,592.30 denied in the initial decision.

A reconsideration panel awarded May reimbursement of an

additional $61,891.04.   The panel based its denial of further

reimbursement on May's failure to obtain written approval for

soil removal before April 21, 1993, and on May's excavation

below the water table, which DEQ asserted was at 5.5 feet below

grade.   The reconsideration panel gave May credit for

considering as sufficient the oral authorization that it

received in the April 21, 1993 teleconference, and it allowed

May reimbursement, in part, for the cost of excavation pursuant

to that oral authorization.

                                - 3 -
     The reconsideration panel determined that May had excavated

3,374 tons of soil prior to the April 21, 1993 authorization.

Holding that excavation to be unauthorized, it denied

reimbursement for its cost.   It found that pursuant to the April

21, 1993 authorization, May excavated an additional 1,675 tons

of soil, but that this included excavating to a depth of 13.5

feet, whereas the water table was encountered at 5.5 feet below

grade.   It disallowed reimbursement for the cost of excavation

below the water table.   It found that May had excavated 683 tons

of soil, pursuant to authorization, down to the 5.5 foot water

table level.   It allowed reimbursement for that amount of

excavation.

     The trial court affirmed DEQ's reconsideration panel

decision.

                            II.    ANALYSIS

     Separate standards of review determine the degree of

deference, if any, to be given on appeal to an administrative

agency's decision.    Holtzman Oil Corp. v. Commonwealth, 32

Va. App. 532, 539, 529 S.E.2d 333, 337 (2000).

            Where the issue is whether there is
            substantial evidence to support findings of
            fact, great deference is to be accorded the
            agency decision. Where the issue falls
            outside the specialized competence of the
            agency, such as constitutional and statutory
            interpretation issues, little deference is
            required to be accorded the agency decision.
            Where, however, the issue concerns an agency
            decision based on the proper application of
            its expert discretion, the reviewing court

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             will not substitute its own independent
             judgment for that of the agency but rather
             will reverse the agency decision only if
             that decision was arbitrary and capricious.
             Finally, in reviewing an agency decision,
             the courts are required to consider the
             experience and specialized competence of the
             agency and the purposes of the basic law
             under which the agency acted.

Id. (quoting Johnston-Willis Ltd. v. Kenley, 6 Va. App. 231,

246, 369 S.E.2d 1, 9 (1988)).     Agency decisions must be in

writing and become part of the record.      See Code §§ 2.2-4020

and -4023.

             When the decision on review is to be made on
             the agency record, 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 . . . could reasonably
             find them to be as it did.

Code § 2.2-4027.

                        A.   POST HOC RATIONALE

     May first argues that the trial court erroneously

considered, as grounds for affirmance, reasons not underlying

DEQ's decision.    "Under well-established principles of

administrative law, the Court may not accept counsel's post hoc

rationalizations for agency action.      Rather, the Court must

determine the validity of agency rules solely on the basis

articulated by the agency itself in the administrative record

made in connection with the rulemaking."      Jordan v. Lyng, 659

F. Supp. 1403, 1416 (E.D. Va. 1987).




                                 - 5 -
     The DEQ reconsideration panel based its denials of

reimbursement on two holdings:    First, that its regulation

VR 680-13-02 authorized soil removal only upon written

pre-approval by DEQ and non-compliant soil removal was not

reimbursable; and second, that excavation below the ground water

table was not standard practice and was not reimbursable.

     DEQ argued before the trial court that May's excavation

prior to April 21, 1993, was neither an "initial response,"

VR 680-13-02 § 6.2, 1 nor an "initial abatement," VR 680-13-02

§ 6.3. 2   It argued that the excavation for which reimbursement

was sought was a "corrective action plan," VR 680-13-02 § 6.6, 3

which required prior written authorization by DEQ.    It argued

further that excavation below the ground water table contravened

standard industry practice and prudent cleanup management and

thus was ineligible for reimbursement.

     We hold that the position taken by DEQ before the trial

court was in support of its reconsideration panel's

determination and lay along the same lines.    Thus, that position

was not a post hoc rationale.




     1
         Recodified as 9 VAC 25-580-240.
     2
         Recodified as VAC 25-580-250.
     3
         Recodified as VAC 25-580-280.


                                 - 6 -
                 B.    MERITS OF THE DEQ DETERMINATION

            1.     REQUIREMENT OF WRITTEN AUTHORIZATION

     The Tank Fund, Code § 62.1-44.34:11, provides reimbursement

for "reasonable and necessary costs incurred by 'owners and

operators' of underground petroleum storage tanks 'in taking

corrective action for any release of petroleum into the

environment . . . .'"      Holtzman, 32 Va. App. at 540, 529 S.E.2d

at 337 (quoting Code § 62.1-44.34:11(A)(2)(a)).        The Tank Fund

provides reimbursement for three types of corrective action:

(1) initial response pursuant to VR 680-13-02 § 6.2, (2) initial

abatement pursuant to VR 680-13-02 § 6.3, and (3) activity

pursuant to an approved corrective action plan pursuant to VR

680-13-02 § 6.6.      Id. at 541, 529 S.E.2d at 338.

     VR 680-13-02 § 6.2 "initial response" requires an owner or

operator, upon discovering a petroleum release, (1) to report

the release, (2) to take immediate action to prevent further

release into the environment, and (3) to identify and mitigate

fire, explosion and vapor hazards.        "The DEQ has interpreted VR

680-13-02 § 6.2 to include those activities involving 'hazards'

to 'human health, safety, and the environment,' which 'must be

initiated immediately.'"      Holtzman, 32 Va. App. at 541, 529

S.E.2d at 338.

     May reported discovering the release.        No other

circumstances contemplated by VR 680-13-02 § 6.2 obtained, and



                                  - 7 -
May performed no activity pursuant to VR 680-13.02 § 6.2 for

which it sought reimbursement.

     On June 8, 1993, May submitted to DEQ a report, which

stated:

          No vapors or free product were observed in
          the site storm sewers or basements of the
          site buildings. Sanitary sewers were not
          observed in the vicinity of the UST
          [underground storage tank] areas. Ambient
          air was monitored in the UST removal work
          areas using an HNu PID [photo-ionization
          detector]. There was no instrument response
          during ambient air monitoring.

This site characterization report stated that the petroleum

remaining in the soils was "immobile and not volatile."     With no

fire, explosion, or vapor hazard present, May's actions were not

performed as an initial response activity pursuant to VR

680-13-02 § 6.2.   See Holtzman, 32 Va. App. at 542, 529 S.E.2d

at 338.

     A corrective action plan developed under VR 680-13-02 § 6.6

is a detailed strategy for responding to contaminated soil and

ground water.   It is designed to provide direction, with agency

specifications, in the cleanup process and to ensure the

protection of human health, safety, and the environment.    A

corrective action plan must be approved by DEQ.   See

VR 680-13-02 § 6.6.   May submitted no corrective action report,

and DEQ approved no corrective action plan.   Thus, May's

activities were not pursuant to VR 680-13-02 § 6.6 and do not

qualify for reimbursement under that section.

                                 - 8 -
     Because May's actions fell within the ambit of neither

Section 6.2 nor Section 6.6, the issue is whether its actions

constituted initial abatement pursuant to Section 6.3.

     Under Section 6.3, owners and operators, unless otherwise

directed, must, among other things:

          (1) remove as much of the regulated
          substance from the [excavated] system as is
          necessary to prevent further release to the
          environment;

          (2) visually inspect any above ground
          releases or exposed below ground releases
          and prevent further migration of the
          released substance into surrounding soils
          and ground water;

          (3) [not applicable;]

          (4) remedy hazards posed by contaminated
          soils that are excavated or exposed as a
          result of release confirmation, site
          investigation, abatement, or corrective
          action activities;

          (5) [not applicable;]

          (6) investigate to determine the possible
          presence of free product, and begin free
          product removal as soon as practicable and
          in accordance with 9 VAC 25-580-270
          [relating to the matter of handling and
          disposing of free petroleum product].

VR 680-13-02 § 6.3 (emphasis added).    The measures required of

owners and operators under VR 680-13-02 § 6.3 are not

conditioned upon prior written authorization and must be

accomplished absent contrary direction by DEQ.

     The excavations performed by May fell within its

obligations under VR 680-13-02 § 6.3.   May promptly reported its


                              - 9 -
discovery of the petroleum leakage and undertook diligently and

efficiently to perform and satisfy its obligations under the

regulation.   It removed the escaped regulated substance and

contaminated soil and water.    It forestalled further migration

of the regulated substance.    DEQ never directed it to do

otherwise.    Indeed, on April 21, 1993, DEQ directed May to

continue the operation in progress.      DEQ misconstrued its

regulation when it held that VR 680-13-02 § 6.3 required prior

written authorization for May's activity.     Furthermore, it makes

no sense to approve and permit reimbursement for excavation

subsequent to the April 21, 1993 telephone conference while

denying reimbursement for identical and equally necessary

excavation prior to that date.    Thus, we hold that DEQ committed

an error of law in misconstruing its regulation and that the

trial court erred in affirming that error.

                2.   EXCAVATION BELOW THE WATER TABLE

     DEQ justified its denial of reimbursement upon a finding

that May had excavated below the water table level, which it

stated was located at 5.5 feet below grade.     No evidence

supports this finding.    DEQ attributed its ascertainment of the

water table depth to May's site characterization report.

However, that report did not identify the water table level.

Rather, it referred to "[a]n apparent perched ground water at

the site occurs at a depth between approximately 5.5 and 9.0

feet as measured in ground water monitoring wells . . . ."

                                - 10 -
Perched water is a containment or pooling of water not connected

to the water table.   Thus, DEQ's determination that May

excavated below the water table level is unsupported by

evidence, and the trial court erred in affirming that finding.

     We reverse the judgment of the trial court and direct that

the case be remanded to DEQ for determination whether May's

excavation and cleanup efforts accorded with the requirements of

VR 680-13-02 § 6.3 and whether May is entitled to reimbursement

for its attendant expenses.

                                         Reversed and remanded.




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