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Commonwealth ex rel. State Water Control Bd. v. County Utils. Corp.

Citation: 12 ELR 20892
No. No. 791336, 290 S.E.2d 867/223 Va. 534, (Va., 04/30/1982)

The Supreme Court of Virginia upholds the circuit court's ruling that water quality standards adopted by the Virginia State Water Control Board that were technologically unattainable at any cost violated the State Water Control Law. Pursuant to the standards, appellees, two private utilities, were required either to attain an effluent limitation for nitrogen that is unattainable by any known technology or to connect to the lines of the Hampton Roads Sanitation District (HRSD), a publicly owned utility. Initially, the court rules that (1) appellees were not required to file a petition for appeal with the circuit court, (2) the Board's standard requiring connection to the HRSD did not constitute a taking of appellees' property without just compensation, and (3) the circuit court properly admitted evidence concerning the technological validity, practical feasibility, and effect of the Board's water quality standards. Pursuant to the State Water Control Law, the Board was required to promulgate numerical standards that are reasonable and practical of attainment. The Board established standards that it knew to be unattainable and thus invalid, but argued that the utilities have the alternative of connecting to the HRSD. The court, however, upholds the circuit court's ruling that the Board's orders directing appellees to connect to the HRSD were arbitrary, capricious, and unreasonable, since appellees did not have the alternative to comply with a valid standard. Finally, the court rules that the action was of an equitable nature and therefore, the apportionment of costs was within the discretion of the trial court.

Counsel for Appellant
Timothy G. Hayes, John R. Butcher, Ass't Attorneys General
Supreme Ct. Bldg., Richmond VA 23219
(804) 786-2071

Counsel for Appellees
Robert R. MacMillan, E. Leslie Cox
Breeden, Howard & MacMillan
1700 First Va. Bank Tower, 101 St. Paul's Blvd., Norfolk VA 23510
(804) 622-1111