Do the State Water Control Board's sewage sludge permits have to comply with the statute that authorizes them?

Plain-English summary

Delegate Gilbert asked the AG whether the State Water Control Board's sewage sludge land-application permits must comply with the requirements of § 62.1-44.19:3. The AG's answer is short: yes.

The reasoning is fundamental administrative-law doctrine. The Board is an agency of the executive branch, created by statute. As the AG put it, administrative agencies, in exercising their powers, "may validly act only within the authority conferred upon them by statutes vesting power in them."

Applied here: § 62.1-44.19:3 is the Board's enabling authority for sewage sludge permitting. The statute requires permits, specifies requirements for the permits, authorizes the Board to adopt regulations, and requires notice to local governments. The Board must act in compliance with that statute. Any permit it issues that does not comply with the applicable requirements of § 62.1-44.19:3 would exceed the Board's authority.

That is an unsurprising bottom line. The opinion's significance is simply what it confirms: the Board must act in compliance with its enabling statute.

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 sewage sludge regulatory framework has been amended since 2010. Anyone evaluating a current permit should look at the current text of § 62.1-44.19:3, the Board's current regulations, and any newer AG opinions or court decisions on Board authority.

Common questions

What does § 62.1-44.19:3 require?
A permit. The owner of a sewage treatment works may not land apply, market, or distribute sewage sludge without one (subsection (A)(1)), and a person doing the same under contract with such an owner needs a permit too (subsection (A)(3)). Other portions of the statute specify requirements for the permits, authorize the Board to adopt regulations, and require notice to local governments.

What does it mean for a Board to "exceed its statutory authority"?
An agency exceeds its authority when it does something the statute does not permit, fails to do something the statute requires, or imposes requirements that conflict with the statute. The AG's point is that the Board has only the powers its enabling statute confers, so any permit that does not comply with the applicable requirements of § 62.1-44.19:3 would fall outside that authority.

Background and statutory framework

The Board and its authority:

• The State Water Control Board is an agency, created by statute, in the Executive Department of the Commonwealth.

The permit statute:

• § 62.1-44.19:3(A)(1). Requires a permit from the Board for the owner of a sewage treatment works to land apply, market, or distribute sewage sludge.
• § 62.1-44.19:3(A)(3). Requires a permit to land apply, market, or distribute sewage sludge under contract with the owner of a sewage treatment works.
• Other portions of the statute specify requirements for the permits, authorize the Board to adopt regulations, and require notice to local governments.

The principle:

• Administrative agencies have only the powers their enabling statutes confer. As the AG stated, they "may validly act only within the authority conferred upon them by statutes vesting power in them." The same principle applies to the State Water Control Board.

Citations

• Va. Code § 2.2-505
• Va. Code Ann. § 62.1-44.19:3, including subsections (A)(1) and (A)(3)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-102-Gilbert.pdf

Original opinion text

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

October 29, 2010

The Honorable C. Todd Gilbert
Member, House of Delegates
Post Office Box 309
Woodstock, Virginia 22664

Dear Delegate Gilbert:

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 permits issued by the State Water Control Board (the "Board") for land application of sewage sludge must be in compliance with applicable requirements of § 62.1-44.19:3.

Response

It is my opinion that any permit issued by the Board for land application of sewage sludge must be in compliance with the applicable requirements of § 62.1-44.19:3.

Applicable Law and Discussion

Section 62.1-44.19:3(A)(1) requires a permit from the Board for the owner of a sewage treatment works to land apply, market or distribute sewage sludge. Section 62.1-44.19:3(A)(3) similarly requires a permit to land apply, market or distribute sewage sludge under contract with the owner of a sewage treatment works. Other portions of the statute, among other provisions, specify requirements for the permits, authorize the Board to adopt regulations, and require notice to local governments.

The Board is an agency, created by statute in the Executive Department of the Commonwealth. It is elementary that "administrative agencies, in the exercise of their powers, may validly act only within the authority conferred upon them by statutes vesting power in them." Thus, it follows without question that the Board must act in compliance with its authorizing statute, in this case § 62.1-44.19:3.

Conclusion

Accordingly, it is my opinion that any permit issued by the Board for land application of sewage sludge must be in compliance with the applicable requirements of § 62.1-44.19:3.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General