7-Eleven, Inc.
v.
Dept. of Environmental Quality

Court of Appeals of Virginia. RichmondDec 30, 2003
42 Va. App. 65 (Va. Ct. App. 2003)
42 Va. App. 65590 S.E.2d 84

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Record No. 2380-01-2.

December 30, 2003.

Appeal from the Circuit Court No. HN-2268, of the City of Richmond Melvin R. Hughes, Jr., Judge.

Wyatt B. Durrette, Jr. (Derrick L. Walker; Durrette Bradshaw, P.L.C., on briefs), Richmond, for appellant.

John R. Butcher, Special Assistant Attorney General (Jerry W. Kilgore, Attorney General; Roger L. Chaffe, Senior Assistant Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and BENTON, ELDER, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, FELTON AND KELSEY, JJ.



UPON A REHEARING EN BANC


BENTON, Jr., Judge.

The Department of Environmental Quality denied a substantial part of a request by 7-Eleven, Inc. for reimbursement from the Petroleum Storage Tank Fund for payments 7-Eleven made when it settled a suit brought by a third-party for property damage related to a petroleum spill. 7-Eleven contends the trial judge erroneously upheld that decision by (1) applying incorrect standards on review, (2) ruling that the issue on review was within the Department's specialized competence and expertise, (3) failing to properly consider evidence in the record, and (4) upholding the Department's Tank Fund guidelines. In reviewing these issues, we must examine the term "costs" in the context of a statutory indemnity scheme.

A divided panel of this Court affirmed the trial judge's decision. See 7-Eleven, Inc. v. Dep't of Env. Quality, 39 Va. App. 377, 573 S.E.2d 289 (2002). We granted 7-Eleven's petition for rehearing en banc, and, for the reasons that follow, we reverse the judgment.

I.

The Department of Environmental Quality, which the legislature created to consolidate the programs of the State Water Control Board and four other agencies, see Code § 10.1-1182 et seq., administers the Petroleum Storage Tank Fund for the Board. See Code §§ 62.1-44.34:10 through 62.1-44.34:13. In pertinent part, the Tank Fund statute provides as follows:

2. Disbursements from the Fund may be made only for the following purposes:

a. Reasonable and necessary per occurrence costs incurred for releases . . . by the owner or operator who is the responsible person, in taking corrective action for any release of petroleum into the environment from an underground storage tank which are in excess of the per occurrence financial responsibility requirement imposed in subsection B of § 62.1-44.34:12, up to one million dollars.

b. Reasonable and necessary per occurrence costs incurred for releases . . . by the owner or operator who is the responsible person for compensating third parties, including payment of judgments for bodily injury and property damage caused by the release of petroleum into the environment from an underground storage tank, which are in excess of the per occurrence financial responsibility requirement imposed by subsection B of § 62.1-44.34:12, up to one million dollars. Disbursements for third party claims shall be subordinate to disbursements for the corrective action costs in subdivision A 2 a of this section.

Code § 62.1-44.34:11(A)(2).

The evidence in the record proved that in June 1990, 7-Eleven reported to the Board a leaking gasoline pump at one of its properties in Henrico County. After an environmental consultant found petroleum in the ground and in a spring and a stream, 7-Eleven hired a contractor to clean the contaminated area, which included a nearby parcel of property owned by Hechinger, Inc. The corrective action, however, only partially abated the petroleum plume in the groundwater. As permitted by the Tank Fund, 7-Eleven requested reimbursement of $599,746.94 from the Board for its "reasonable and necessary . . . costs" in correcting the release of petroleum into the environment. See Code § 62.1-44.34:11(A)(2)(a). The Board, acting through the Department, approved $458,838.74 of the clean-up costs. After subtracting $50,000 for 7-Eleven's financial responsibility, see Code § 62.1-44.34:12(B), the Board reimbursed 7-Eleven for $408,838.74 of its costs. Those costs and reimbursements are not at issue in this appeal.

In April 1995, Hechinger sued 7-Eleven in the Circuit Court of the City of Alexandria for property damage caused by the petroleum release, alleging negligence, trespass, nuisance, and statutory liability under Code § 62.1-44.34:18(C)(4). Hechinger's motion for judgment sought damages of $2,000,000, interest, costs, and attorneys' fees. While the litigation was pending, 7-Eleven notified the Department of its potential claim against the Tank Fund for damages to Hechinger's property. See Code § 62.1-44.34:11(A)(2)(b). After 7-Eleven stipulated to statutory liability under Code § 62.1-44.34:18(C)(4), the case went to trial in the circuit court on the issue of damages. During the second day of trial, the parties agreed that 7-Eleven would pay Hechinger $575,000 as a settlement of its $2,000,000 claim.

7-Eleven notified the Department of the settlement and sought reimbursement from the Tank Fund. See Code § 62.1-44.34:11(A)(2)(b). In support of its claim, 7-Eleven presented to the Department various documents, including exhibits prepared for and used at trial. The Department held an informal fact-finding proceeding and allowed 7-Eleven to later submit additional evidence. Based on its consideration of the evidence, the Department found that 7-Eleven "was the responsible person for this release and the release was from a regulated [underground storage tank]." The Department awarded 7-Eleven $103,117 as reimbursement for payment of property damage to Hechinger. The Department found that this amount represented the diminution in the market value of Hechinger's property.

7-Eleven appealed to the circuit court, alleging the case decision was unlawful. Following written briefs and oral argument, the trial judge ruled that the Department's decision concerning "reasonable and necessary per occurrence costs" for compensating Hechinger for property damage was an issue involving the Department's special expertise. Finding that the decision was supported by substantial evidence and was not arbitrary and capricious, the trial judge upheld the Department's decision to award only partial reimbursement to 7-Eleven. This appeal followed.

II.

In simple terms, the issue in this appeal is whether, in evaluating the "reasonable and necessary . . . costs" 7-Eleven incurred in compensating Hechinger for property damage caused by the petroleum release, the Department could disregard the reasonableness of the $575,000 settlement. Noting that its liability was indisputable, 7-Eleven contends the Department erred by failing to consider the factors reflective of the reasonableness of the settlement, including "the strength of Hechinger's case heading into trial, 7-Eleven's exposure to liability and damages, the expense to the parties, the complexity of the issues presented in the litigation, the likely duration of the litigation, the amount offered at settlement, and the state of the proceedings at the time of the settlement." The Department responds that the trial judge correctly ruled that substantial evidence supported the Department's decision.

A.

The record reflects that neither the Department nor the trial judge found that the settlement was unreasonable or unnecessary given the circumstances of the litigation. Moreover, the Department found that "[a]t a minimum, information contained in the Department's corrective action files demonstrates that the contamination . . . originated from the [7-Eleven] release" and, thus, determined that 7-Eleven's liability was "fairly disputable."

To the extent the Department concluded, without determining the reasonableness of the settlement, that 7-Eleven's settlement costs were not recoverable, the Department's decision was based on an interpretation of Code § 62.1-44.34:11(A)(2)(b) that excluded from the Code's definition of "costs" the kind of property damage settlement costs 7-Eleven incurred. Dismissing 7-Eleven's claims on its appeal to the circuit court, the trial judge ruled that "[b]ecause the statute does not tie the reasonableness requirement to the litigation arena, the Department did not need to consider the factors listed by [7-Eleven] and failure to do so was not error." We hold that those decisions are legally flawed.

B.

In reviewing those decisions, we hold that no special agency expertise is necessary for a resolution of the issues this appeal raises.

The sole issue involves a question of statutory interpretation. The issue does not involve "the substantiality of the evidential support for findings of fact," which requires great deference because of the specialized competence of the agency. Instead, when, as here, the question involves a statutory interpretation issue, "little deference is required to be accorded the agency decision" because the issue falls outside the agency's specialized competence.

Sims Wholesale Co. v. Brown-Forman Corp., 251 Va. 398, 404, 468 S.E.2d 905, 908 (1996) (citation omitted). "The reviewing court may set the agency action aside, even if it is supported by substantial evidence, if the court's review discloses that the agency failed to comply with a substantive statutory directive." Browning-Ferris Indus. of South Atlantic, Inc. v. Residents Involved in Saving the Env't, Inc., 254 Va. 278, 284, 294 S.E.2d 431, 434 (1997).

C.

The principle is well established that "[w]ords in a statute are to be construed according to their ordinary meaning, given the context in which they are used." Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982); Loyola Fed. Savings and Loan Ass'n v. Herndon Lumber Millwork, Inc., 218 Va. 803, 805, 241 S.E.2d 752, 753 (1978). The clear wording of Code § 62.1-44.34:11(A)(2)(b) provides that an owner may recover "[r]easonable and necessary . . . costs incurred for releases [of petroleum from an underground storage tank] . . ., including payment of judgments for bodily injury and property damage." In the context of the statute, the word "costs" means either "an item of outlay incurred in the operation of a business enterprise," Webster's Third New International Dictionary 515 (1981), or, more generally, "the expenditure or outlay of money." Id. Thus, if the litigation that Hechinger instituted against 7-Eleven for property damage caused by the spill had gone to judgment in Hechinger's favor, the judgment amount certainly would have established the base-line for the computation of 7-Eleven's reasonable and necessary costs for purposes of Code § 62.1-44.34:11(A)(2)(b), subject only to the statutory limitation. A plain reading of the statute permits no other conclusion.

Except as generally circumscribed by the Tank Fund scheme, Code § 62.1-44.34:11(A)(2)(b) does not contain an enumerated listing of costs to be reimbursed and clearly does not exclude money paid in a settlement for property damage as a factor to be used in determining the "[r]easonable and necessary . . . costs" of an owner. Moreover, the statutory directive to consider "payment of judgments for . . . property damage caused by the release of petroleum" as a measure of the "[r]easonable and necessary per occurrence costs" clearly encompasses settlements that occur during litigation concerning the property damage. Because the statute is without limitation in defining the type of costs an owner, who is the responsible party for compensating third parties, can recover for compensating a third party for damage caused by a petroleum release from an underground tank, a plain reading of the statute manifests an intention that settlement expenses are "costs" contemplated by the legislature.

By specifically denoting that "[r]easonable and necessary . . . costs" would "includ[e] payment of judgments for . . . property damages," the legislature obviously contemplated that litigation might occur and that any resulting judgment would be included in the determination of costs to be reimbursed from the Tank Fund. Code § 62.1-44.34:11(A)(2)(b). In addition, the statutory term "costs," is inclusive of the expenditures an owner makes to third parties for property damage and does not pertain exclusively to judgments as the Department suggests. The clear and ordinary language of the statute manifests that "[b]y the use of the term `including,' [the legislature] indicated that the specifically mentioned [payments] are not exclusive." Herb's Welding, Inc. v. Gray, 470 U.S. 414, 423 n. 9 (1985). We hold that the wording of the statute leaves no doubt that the legislature envisioned legal actions being brought against owners who are the responsible parties for causing petroleum spills and that the legislature intended that the monetary result of those legal actions for property damage, including settlements, be included as a cost to be reimbursed.

Furthermore, our reading of the statute must be governed by the following principles:

Every statute is to be read so as to "promote the ability of the enactment to remedy the mischief at which it is directed." Natrella v. Board of Zoning Appeals, 231 Va. 451, 461, 345 S.E.2d 295, 301 (1986) (quoting Jones v. Conwell, 227 Va. 176, 181, 314 S.E.2d 61, 64 (1984)). The ultimate purpose of all rules of construction is to ascertain the intention of the legislature, which, absent constitutional infirmity, must always prevail. All rules are subservient to that intent. Shackelford v. Shackelford, 181 Va. 869, 877, 27 S.E.2d 354, 358 (1943). Further, it is a universal rule that statutes . . . which are remedial in nature, are to be "construed liberally, so as to suppress the mischief and advance the remedy," as the legislature intended. Shumate's Case, 56 Va. (15 Gratt.) 653, 661 (1860) (emphasis added).

Board of Sup. v. King Land Corp., 238 Va. 97, 103, 380 S.E.2d 895, 897-98 (1989).

Our holding is consistent with the legislative policy manifested by the statute. The Tank Fund is a part of a broader scheme of the State Water Control Law adopted to protect the quality of state waters and to prevent any increase in pollution. Code § 62.1-44.2. "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." May Dep't Stores Co. v. Commonwealth of Va., Dep't of Environmental Quality, 29 Va. App. 589, 598, 513 S.E.2d 880, 884 (1999) (citing Code §§ 62.1-44.34:11, 62.1-44.34:13). The Tank Fund was designed to provide a prompt and efficient means of abating pollution caused by underground storage tanks and to facilitate payment of compensation to third parties who have suffered bodily injury and property damage caused by release of petroleum from underground storage tanks. The statute renders irrelevant whether the third party has been compensated for those injuries by a judgment or by a reasonable settlement prior to judgment.

In determining the costs to be reimbursed, the Department can only fulfill its responsibility under the statute — to ensure that the public interest is served — if it considers the reasonableness of the cost of settling litigation. This conclusion is buttressed by long-standing "settled principles of law," which the Supreme Court has recognized as a matter of public policy and equity, that "`[t]he law favors compromise and settlement of disputed claims.'" Snyder-Falkinham v. Stockburger, 249 Va. 376, 381, 457 S.E.2d 36, 39 (1995) (citation omitted); see also Eggleston v. Crump, 150 Va. 414, 418-19, 143 S.E. 688, 689 (1928). Indeed, in this case, where the issue of liability is uncontested, it would be contrary to the clear meaning of the statute and, furthermore, would be incongruous and injurious to public policy to hold that the Department could fail to consider the settlement costs as a factor in determining reasonable and necessary costs for property damage caused by 7-Eleven's petroleum spill.

The Department's interpretation would lead to a costly and irrational result. Because the Department's decision creates uncertainty in what is reimbursable, owners who caused spills would be forced to reject most reasonable settlements in favor of adjudication. Owners would refuse to settle whenever the difference between the proposed settlement and what they estimate the Department is willing to pay is greater than the difference between the potential judgment and the fund's maximum pay-out limit. Assuming judgments are generally higher than settlements, the Department generally will pay more out of the Tank Fund because owners would have great incentive to allow a jury to adjudicate the claims brought by third parties.

The Department does not offer and we do not discern any logical reason why the legislature would have intended to differentiate between reimbursement for settlements and reimbursement for judgments. When we read the statute, as we must, to promote its ability to "remedy the mischief at which it is directed," King Land Corp., 238 Va. at 103, 380 S.E.2d at 897, the statute inexorably and logically manifests the conclusion that settlements of legal actions would occur, that settlements would be judged by determining the reasonableness of the settlement, and that the amount of a reasonable settlement would also be an item the Department would reimburse as "reasonable and necessary . . . costs." Thus, we hold that the Department's interpretation of the statute to preclude recovery of settlement costs is contrary to a plain reading of the statute which requires, subject only to the statutory limitation of one million dollars, that costs an owner incurs for compensating third parties for property damage caused by petroleum releases be reimbursed based on whether they are reasonable and necessary.

D.

Significantly, the Department now recognizes in the preamble to its Guidelines, which were adopted on February 12, 1998, after 7-Eleven settled the litigation, that "disbursements . . . may be made for costs incurred . . . to compensate third parties for the reasonable and necessary costs of settlements and judgments for . . . property damage." Virginia Petroleum Storage Fund Third Party Disbursement Guidelines (emphasis added). To implement that policy, the Guidelines now provide that the Department will " review all settlements for reasonableness." Guidelines, VIII (A)(3) (emphasis added). This policy, which the Department apparently derives from the authority of the statutes, is precisely the remedy 7-Eleven contends is mandated by the statutes and pre-existed the adoption of the Guidelines.

Neither the Department in its fact finding nor the trial judge on review determined that $575,000 was an unreasonable amount to settle the pending property damage litigation or that $575,000 was not within the range of a judgment of a rational jury had the litigation, which already had consumed a day and one-half at trial, proceeded to judgment on the merits. See Dauphin Deposit Bank and Trust Co. v. Hess, 727 A.2d 1076, 1078 ( Pa. 1999) (holding that criteria used in assessing the reasonableness of settlement "include evaluations of (1) the risks of establishing liability and damages, (2) the range of reasonableness of the settlement in light of the best possible recovery, (3) the range of reasonableness of the settlement in light of all the attendant risks of litigation, (4) the complexity, expense, and likely duration of the litigation, (5) the stage of the proceedings and the amount of discovery completed, (6) the recommendations of competent counsel, and (7) the reaction of the [beneficiaries] to the settlement"). Likewise, the record contains no finding that a $575,000 judgment by a jury for the property damage would have been so excessive as to require a trial judge to set it aside or as to require an appellate court to do the same. See Edmiston v. Kupsenel, 205 Va. 198, 202, 135 S.E.2d 777, 780 (1961). The Department's implicit suggestion that, prior to the adoption of the Guidelines, it had the discretion to refuse to consider the settlement as an element of "costs" is simply based on a misreading of the Tank Fund statutes.

E.

Without assessing any of the issues concerning the likelihood of success at trial or the reasonableness of the settlement, the Department made its own judgment that the lowest valuation of damage was more credible and found as follows:

Based on the valuation information provided, a reasonable range for the permanent damages was between $138,700 and $103,117 (i.e., $938,700 or $903,117 minus $800,000). It is not necessary to make an adjustment to reflect partial cure costs, because the $800,000 offer [to purchase the property] appeared to be from an arms-length buyer and was made at a time when the cure of the property was nearly complete. Additionally, the evidence does not clearly demonstrate that topographical problems at the site affected the offer price. Therefore, [7-Eleven] will be given the benefit of the doubt on this issue, and no adjustment will be required to address this alleged cause of reduced property value. For the foregoing reasons, third party claim costs in the amount of $103,117 are approved, as this amount reflects actual market values.

This record clearly "demonstrate[s] an error of law . . . [concerning] compliance with statutory authority." Code § 9-6.14:17. In short, the Department did not evaluate the reasonableness and necessity of the settlement but, instead, reviewed the evidence developed during the litigation and decided, independent of the litigation risk, an amount it believed represented the diminution of the fair market value of the property. The Department then ruled that this amount constituted the reasonable and necessary costs to be reimbursed.

Put simply, the Department's decision was contrary to the plain language of the statute. "Since the issue before us is purely one of law, containing no underlying factual issues, we do not apply a presumption of official regularity or take account of the experience and specialized competence of the administrative agency." Browning-Ferris Indus., 254 Va. at 284, 492 S.E.2d at 434. A reviewing court may reverse an agency's determination where the agency's decision is based on an improper statutory interpretation. Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 247, 369 S.E.2d 1, 10 (1988).

Code § 9-6.14:19, a part of the Administrative Process Act, controls the action a . . . court may take when it finds a case decision "to be not in accordance with law under § 9-6.14:17." Among the errors of law addressed in the latter statute is failure of the agency to comply "with statutory authority" and failure of the agency to observe "required procedure." § 9-6.14:17(ii) and (iii). When the court finds the case decision to be unlawful on these grounds, it "shall suspend or set it aside and remand the matter to the agency for such further proceedings, if any, as the court may permit or direct in accordance with law." § 9-6.14:19.

Virginia Bd. of Med. v. Fetta, 244 Va. 276, 280, 421 S.E.2d 410, 412 (1992).

For these reasons, we hold that because Code § 62.1-44.34:11(A)(2)(b) requires the Department, in administering the Tank Fund, to assess the "reasonable and necessary . . . costs incurred for releases . . . by the owner . . . for compensating third parties, including payments of judgments for . . . property damage caused by the release," the Department erred when it failed to assess the reasonableness of the settlement and failed to determine as a factor in reimbursing 7-Eleven for its reasonable and necessary costs the settlement amount paid by 7-Eleven to Hechinger.

III.

7-Eleven additionally contends the Department's Guidelines impermissibly restrict recovery of property damage. The Department responds that the question of which costs are eligible for reimbursement is an issue of fact and that 7-Eleven's evidence failed to prove other costs were attributable to the spill. Alternatively, the Department contends that 7-Eleven's other costs were "intangible property damage costs and interest," which the Department properly excludes from the Guidelines. Assessing these arguments, the trial judge ruled that "[t]he Department [was within] . . . its discretion [in concluding] that those costs associated with permanent damages to property which are both reasonable and necessary are either the diminution in value of the property or the cost to restore the property."

A.

The Guidelines provide in pertinent part as follows:

Costs incurred by owners/operators, in compensating third parties for real property damage proximately caused by a release from an owner's/operator's eligible tank, which are eligible for disbursement from the Fund include the following:

1. For temporary damage to real property, the decrease in rental value during the continuance of the injury, and

2. For permanent damage to real property, the lower of (I) the diminution in the value of the real property and fixtures or (as determined after completion of corrective action) (ii) the cost to restore the real property to its condition prior to the injury.

Guidelines VI(C).

In granting the Department the discretion to determine whether costs an owner incurred "for compensating third parties . . . for property damage caused by the release of petroleum" were reasonable and necessary, Code § 62.1-44.34:11(A)(2)(b), the General Assembly obviously intended that the Department determine, on a case-by-case basis, which costs would be reimbursed. In other instances, where a statute has given an agency such discretion, we have reversed agency action, noting that, "[a]lthough the statute authorizes the use of discretion, the current policy guidelines allow no discretion to be exercised in determining [the statutorily delegated function]." Woods v. Commonwealth, 26 Va. App. 450, 458-59, 495 S.E.2d 505, 509 (1998).

By restricting recovery of property damages to only those specifically listed in the Guidelines, the Department concluded as a matter of law that other costs would not be reimbursed. The trial judge ruled that the Department's interpretation of permissible damages for permanent injury to real property was "implemented through the Guidelines . . . [and was not] arbitrary and capricious." We hold that the trial judge erred in applying this standard.

B.

Limiting permanent damages to the diminution in the value of the property, the Department ruled as follows:

Upon site closure, contamination remained on the Hechinger property. The Regional Office's July 7, 2000 memorandum indicates that it is simply not possible to predict how long it will take for natural attention [sic] to return the site to background levels. [7-Eleven] provided no evidence and no evidence exists in the Agency's records that indicates the remaining contamination will attenuate within a known time frame. Consequently, it is appropriate to treat the injury as permanent. The measure for permanent injury to real property pursuant to Packett v. Herbert is the permanent diminution in the value of the property.

To determine the permanent diminution in the value of the property, the fair market value of the property after the injury is subtracted from the fair market value of the property before the injury.

The Department, however, improperly relied on Packett v. Herbert, 237 Va. 422, 377 S.E.2d 438 (1989), to conclude that damages are limited to the diminution in the value of the property.

The Supreme Court long ago rejected an appellant's contention "that inconsistent elements of damage are claimed . . . because the permanent depreciation in the market value of property comprehends the whole damage that can be caused to property by the establishment of a permanent nuisance." Virginia Railway Co. v. London, 114 Va. 334, 343, 76 S.E. 306, 307 (1912). The principle is well settled in Virginia that a party may recover for all damages proximately caused by another party's tortious conduct. Lochaven Co. v. Master Pools by Schertle, Inc., 233 Va. 537, 541, 357 S.E.2d 534, 537 (1987). The Supreme Court held in Lochaven Co. that "[t]he measure of damages in a negligence action is that amount necessary to compensate the injured party for the damages proximately caused by the tortious conduct." 233 Va. at 541, 357 S.E.2d at 537. Indeed, the Court has held that a jury may properly "assess damages for defendant's conduct in diminishing the value of plaintiffs' properties, for continuously interfering with the enjoyment of that property, and for causing material disturbance or annoyance to plaintiffs in their use and occupation of the property." National Energy Corp. v. O'Quinn, 223 Va. 83, 91, 286 S.E.2d 181, 186 (1982). See also Bowers v. Westvaco Corporation, 244 Va. 139, 149, 419 S.E.2d 661, 667 (1992) (restating the Court's prior holdings that "`[a] nuisance may diminish value of realty . . . [and] also may interfere with some right incident to the ownership or possession of real property'").

Where, as 7-Eleven contends in this case, Hechinger sued for and was entitled to carrying costs, lost profits, and lost investment income proximately caused by 7-Eleven's conduct, those costs are recoverable under Virginia tort law if proved. O'Quinn, 223 Va. at 91, 286 S.E.2d at 186. See also Restatement (Second) of Torts § 929 (1979) (providing that damages for injury to real property include compensation for loss of use of the property and other consequential injuries in addition to any permanent property damage, whether measured by restoration or market value). Indeed, Code § 62.1-44.34:18(C)(4), which addresses an owner's liability for the petroleum spill, recognizes potential liability for "damage to . . . property, . . . loss of income, loss of the means of producing income, or loss of the use of the damaged property for . . . commercial, industrial, . . . or other reasonable uses, caused by such discharges."

The record contains the expert appraisals on the pre-injury and post-injury value of Hechinger's property. The record also contains the opinion of Salzman Real Estate Services, Inc., an expert hired by Hechinger, that Hechinger incurred as a result of the spill lost rental income of $710,000 and lost investment returns of $550,000. Salzman calculated that Hechinger had also incurred and paid as property expenses resulting from the spill $283,000 in additional insurance, taxes, administrative expenses, legal fees, and expert fees. The Department, however, did not consider whether the expenses Hechinger claimed in the litigation represented the damage caused by the petroleum spill. Once the Department summarily concluded that it was appropriate to treat the damages in the present case as permanent because no evidence proved that the damage to the property "[would] attenuate within a known time frame," the Department declined to address whether damages, other than the diminution in the value of the property, were also appropriate. Indeed, the Department's decision states that proof of lost investment income, lost rental income, and carrying costs were not considered because they did not conform to the damage formula prescribed in Packett.

In Packett, upon which the Department relied in limiting its award to only diminution in value of the property, the Supreme Court did not preclude recovery of other damages. See 237 Va. at 426-27, 377 S.E.2d at 442. The Court simply held that it would be improper to allow both an injunction and permanent damages because both remedied future harm, i.e., while permanent damages compensate for the future harm, an injunction eliminates future harm. Id. In so ruling, the Court noted that in Miller v. Trueheart and Others, 31 Va. 569, (4 Leigh) 569 (1833), a party properly was entitled to temporary damages and later an injunction.Packett, 237 Va. at 427, 377 S.E.2d at 442. Such damages do not constitute an improper double compensation to the injured party because the temporary damages compensate for past harm while the injunction remedies future harm. See Raleigh Court Corp. v. Faucett, 140 Va. 126, 143, 124 S.E. 433, 438 (1924) (permitting recovery for "temporary and permanent damage . . . done to the plaintiff's lot [of land]"). It is evident from these cases that the motivating factor behind distinguishing between temporary and permanent damages is the prevention of double recovery for property damage. Cf. Jarrett v. E.L. Harper Son, Inc., 235 S.E.2d 362, 365 (W.Va. 1977) (where the Supreme Court of West Virginia noted that the fundamental principle regarding damages is that the injured owner is entitled to the amount of compensation that reasonably will make the injured owner whole, and the Court "eliminat[ed] the temporary and permanent classifications" that had been previously used to distinguish property damage). In the present case, Hechinger sued 7-Eleven for carrying costs, lost profits, and lost investment income, which were in addition to and distinct from its claim of diminution in land value.

C.

Without permitting double recovery, the Department should have analyzed whether any of the other expenses alleged by Hechinger were proximately caused by the petroleum spill and were properly encompassed by the settlement. We hold, therefore, that because the Department determined without factual analysis that 7-Eleven was not allowed to recover as costs other items that Hechinger alleged as expenses resulting from the property damage, the Department erred as a matter of law in its assessment of the extent of 7-Eleven's liability to Hechinger for property damage.

IV.

For these reasons, we reverse the judgment and remand for reconsideration with instructions to analyze the reasonableness of the settlement, giving due consideration to the property damages for which 7-Eleven was liable to Hechinger.

Reversed and remanded.


Because I would find that the circuit court properly applied the substantial evidence standard and the arbitrary and capricious standard in upholding the Department's reimbursement of "costs" to 7-Eleven under the statutes governing the Fund, and because I would find that the Guidelines governing the Fund comply fully with the charge given to the Department by the legislature, I do not join in the analysis or holding of the majority opinion.

I. Standard of Review

As stated in the majority opinion, issues of "pure statutory interpretation [are] the prerogative of the judiciary." Sims Wholesale Co. v. Brown-Forman Corp., 251 Va. 398, 404, 468 S.E.2d 905, 908 (1996). However, I respectfully disagree with the majority's position that the sole issue here is one of statutory interpretation, permitting this Court to set an "agency action aside even if it is supported by substantial evidence," if the court's review discloses that the agency "failed to comply with a substantive statutory directive," citing Browning-Ferris Indus. of South Atlantic, Inc. v. Residents Involved in Saving the Env't, Inc., 254 Va. 278, 284, 294 S.E.2d 431, 434 (1997). Instead, I would hold that the issue in this case, concerning the propriety of the Department's decision declaring only certain of 7-Eleven's claimed "costs" as "reasonable and necessary" and therefore, eligible for reimbursement from the Fund, is more accurately characterized as a mixed question of law and fact. See Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 243, 369 S.E.2d 1, 7 (1988) (noting that many issues concerning the propriety of agency actions and decisions are "more accurately described as mixed questions of law and fact").

As the majority recognizes,

findings of fact are to be accorded great deference under the substantial evidence standard of review. However, when deciding whether an agency has followed proper procedures or complied with statutory authority . . ., an inquiry into whether there is substantial evidence in the record to support findings of fact of an agency is wholly inappropriate. Indeed, even though an agency's findings of fact may be supported by substantial evidence in the record, it may be subject to reversal because the agency failed to observe required procedures or to comply with statutory authority. See, e.g., Atkinson v. Virginia Alcoholic Beverage Control Commission, 1 Va. App. 172, 336 S.E.2d 527 (1985). Thus, where 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.

Id. at 243, 369 S.E.2d at 7-8. However, the "degree of deference afforded an agency decision depends upon not only the nature of the issue, legal or factual, but also upon whether the issue falls within the area of `experience and specialized competence of the agency.'" Id. at 243, 369 S.E.2d at 8 (citation omitted).

If the issue falls outside the area generally entrusted to the agency, and is one in which the courts have a special competence, i.e., the common law or constitutional law, there is little reason for the judiciary to defer to an administrative interpretation. Hi-Craft Clothing Co., 660 F.2d [910,] 914-15 [(3d Cir. 1981)] (citing Piper v. Chris Craft Industries, 430 U.S. [1,] 41 n. 27 (1977)).

Id. at 243-44, 369 S.E.2d at 8. Conversely, "where the question involves an interpretation which is within the specialized competence of the agency and the agency has been entrusted with wide discretion by the General Assembly, the agency's decision is entitled to special weight in the courts." Id. at 244, 369 S.E.2d at 8.

"[`]The rationale of the statutory scheme is that the [administrative agency] shall apply expert discretion to matters coming within its cognizance, and judicial interference is permissible only for relief against the arbitrary or capricious action that constitutes a clear abuse of the delegated discretion. The reviewing judicial authority may not exercise anew the jurisdiction of the administrative agency and merely substitute its own independent judgment for that of the body entrusted by the Legislature with the administrative function.[']"

Id. (quoting Virginia Alcoholic Beverage Control Commission v. York Street Inn, Inc., 220 Va. 310, 315, 257 S.E.2d 851, 855 (1979) (quoting Schmidt v. Board of Adjustment of the City of Newark, 88 A.2d 607, 615-16 (N.J. 1952))).

Thus, it is clear that where the issue to be determined "is a legal issue which falls within the specialized competence of the Commissioner [of an administrative agency] and his [action] involves the proper application of his expert discretion," we do not lightly substitute our judgment for that of the agency specifically created by the legislature to make such determinations, as I believe the majority has done here. Id. at 253-54, 369 S.E.2d at 13; see also Volkswagen of America, Inc. v. Quillian, 39 Va. App. 35, 50, 569 S.E.2d 744, 752 (2002), ("With regard to an agency's decision on legal issues, the standard of review to be applied on appeal depends upon the nature of the legal question involved."), reversed on other grounds sub nom. Volkswagen of America, Inc. v. Smit, 266 Va. 444, 587 S.E.2d 526 (2003). Instead, we reverse such decisions, only if they represent an "arbitrary or capricious action," constituting "a clear abuse of delegated discretion."Volkswagen, 39 Va. App. at 50, 569 S.E.2d at 752.

This Court specifically recognized, in Holtzman Oil Corp. v. Commonwealth, 32 Va. App. 532, 529 S.E.2d 333 (2000), that "[t]he [Department] possesses the requisite experience and competence necessary to determine levels of contamination and the reimbursement due `owners and operators' for the reasonable costs incurred for their environmental clean-up efforts," pursuant to Code § 62.1-44.34:11(A)(2)(a). Id. at 539, 529 S.E.2d 333, 337 (emphasis added). I would find that the Department likewise possesses the requisite experience and competence necessary to determine appropriate reimbursement under Code § 62.1-44.34:11(A)(2)(b).

Further, contrary to the implication in the majority opinion, I would find that the statute unambiguously confers upon the Department the duty to make such determinations through the application of its specialized expertise, by independently considering whether the costs associated with a petroleum release are statutorily eligible for reimbursement — regardless of whether the costs are presented standing alone, or as subsumed within a settlement or a judgment.

In concluding that "no agency expertise is necessary for a resolution of the appeal this issue raises," the majority counter-intuitively suggests that settlement factors such as the "risks of establishing liability and damages" and "complexity, expense and likely duration of the litigation" can be evaluated without the agency applying its expertise and knowledge regarding the effects and remediation of petroleum spills.

Consequently, I would find that the Department's decision here, concerning the eligibility of the costs presented by 7-Eleven for reimbursement under the statute, is entitled to deference by a reviewing court and should not be overturned unless found to be arbitrary and capricious and/or unsupported by substantial evidence in the record. See Holtzman, 32 Va. App. at 539, 529 S.E.2d at 337.

Nevertheless, I find it necessary to note that even in according little or no deference to the Department in matters arguably concerning interpretation of the phrase "reasonable and necessary costs," its decision, and that of the trial court in affirming it, must still stand Indeed, as stated more fully below, the record here simply does not demonstrate that the Department "failed to comply with a substantive statutory directive," or that it improperly limited and/or exercised a "[statutorily delegated function]." See Browning-Ferris, 254 Va. at 284, 294 S.E.2d at 434; Woods v. Commonwealth, 26 Va. App. 450, 458-59, 495 S.E.2d 505, 509 (1998).

II. Determination of Reasonable and Necessary Costs

In light of the foregoing discussion, I would find that the circuit court properly upheld the Department's analysis of the third-party settlement.

As recognized by the majority, the charge given by the legislature to the Department in Code § 62.1-44.34:11(A)(2) is clear. Specifically, that section states, in pertinent part, as follows:

2. Disbursements from the Fund may be made only for the following purposes:

a. Reasonable and necessary per occurrence costs incurred for releases . . . by the owner or operator who is the responsible person, in taking corrective action for any release of petroleum into the environment from an underground storage tank which are in excess of the per occurrence financial responsibility requirement imposed in subsection B of § 62.1-44.34:12, up to one million dollars.

b. Reasonable and necessary per occurrence costs incurred for releases . . . by the owner or operator who is the responsible person for compensating third parties, including payment of judgments for bodily injury and property damage caused by the release of petroleum into the environment from an underground storage tank, which are in excess of the per occurrence financial responsibility requirement imposed by subsection B of § 62.1-44.34:12, up to one million dollars. Disbursements for third party claims shall be subordinate to disbursements for the corrective action costs in subdivision A 2 a of this section.

Code § 62.1-44.34:11(A)(2) (emphases added).

7-Eleven and the majority read this statute to "require" the Department, as a matter of law, to consider a settlement, by default, as a "base-line" figure in determining reimbursable third party costs for a petroleum release. Thus, the majority declares that such settlements must be reviewed only as a whole, in considering whether it represents a "reasonable and necessary" "cost" eligible for reimbursement from the Fund. I would find no such requirement. Instead, the statute requires the Department to do no more than it did here. Specifically, to look beyond any settlement or judgment to consider, through the lens of their specialized expertise: the actual evidence of "costs" presented to the Department; their nexus, if any, to a petroleum spill; and their eligibility for reimbursement from the Fund.

In support of this position, I note that the plain language of the statute requires only that the Department administer Fund reimbursements according to the clear legislative charge given to the Department. That charge is that the Department "may" reimburse appropriate parties "only" for the purposes listed therein. See Code § 62.1-44.34:11(A)(2)(b). Thus, it is the duty of the Department to reimburse such parties only for costs it deems, in its expert opinion, to be "reasonable and necessary," and otherwise eligible for reimbursement under the statute.

While I agree that the "wording of [subsection (A)(2)(b)] leaves no doubt that the legislature envisioned legal actions being brought against owners for petroleum spills and that the legislature intended that the monetary result of those legal actions for property damage, including those cases resulting in settlements," constitute "costs" that the Department has the authority to consider in determining reimbursement, I do not agree with the majority that the Department is "required" to consider the "reasonableness of the settlement" as a separate and distinct element of its inquiry. Rather, the statute very clearly entrusts the Department with the authority, and the duty, to look behind the settlement amount, to determine if the individual costs making up the settlement reflect "reasonable and necessary per occurrence costs" which are otherwise eligible for reimbursement under the statute.

As the majority recognizes, the statute grants the Department the authority to consider a judgment (for bodily injury or property damage) as a separate and distinct element of its inquiry. However, a judgment is quite different from a settlement. Specifically, a judgment reflects a determination of damages reached, in the context of an adversary proceeding, by a disinterested party other than the Department — namely, a judge or jury. A settlement, on the other hand, reflects merely an agreement between interested parties. Although, as the majority correctly recognizes, "`[t]he law favors compromise and settlement of disputed claims,'"Snyder-Falkinham v. Stockburger, 249 Va. 376, 381, 457 S.E.2d 36, 39 (1995) (citation omitted), it is axiomatic that a settlement reflects costs which the parties themselves deem "reasonable and necessary" — costs which may, or may not, be considered "reasonable and necessary" by the Department in its expert discretion, or by a judge or jury in the context of an adversarial proceeding.

The majority holds that "the judgment amount certainly would have established the base-line for the computation of 7-Eleven's reasonable and necessary costs for purposes of Code § 62.1-44.34:11(A)(2)(b), subject only to the statutory limitation. A plain reading of the statute permits no other conclusion." I note here that this fallacious premise ignores the requirement that the Department consider only those individualized "costs" that, in the specialized expertise of the Department, have a causation nexus to the petroleum release and which are not otherwise statutorily ineligible. For example, the statute clearly allows reimbursement " only" for " reasonable and necessary per occurrence costs incurred . . . by the owner or operator who is the responsible person for compensating third parties, including payment of judgments for bodily injury or property damage caused by the release of petroleum. . . ." Code § 62.1-44.34:11(A)(2)(b) (emphases added); see also Code § 62.1-44.34:11(A)(3) — (10) (stating that "[n]o funds shall be paid" for certain costs, including certain specified "reimbursement" costs).

Indeed, the regulations governing the Fund, enacted in 1990, after 7-Eleven settled the litigation, support the import of this distinction. In particular, in setting forth the manner in which compensation from the Fund may be paid directly to third parties, the regulations state:


2. Compensation for bodily injury and property damage shall be paid to third parties only (i) in accordance with final court orders in cases which have been tried to final judgment no longer subject to appeal, (ii) in accordance with final arbitration awards not subject to appeal, or (iii) where the board approved the settlement of claim between the owner or operator and the third party prior to execution by the parties.

The Commonwealth has not waived its sovereign immunity and does not believe that it is a necessary party to a private action against an owner or operator for third party bodily injury and property damage.

9 VAC 25-590-210(A)(2) (emphases added).

The majority holds today that the Department must presume settlements to be "reasonable and necessary" and, if not clearly unreasonable or excessive, must reimburse such costs subject only to the statutory cap. I simply do not agree. As stated above, the statutes governing the Tank Fund, clearly charge the Department with, not only the authority and discretion, but the duty to consider all evidence of per occurrence costs, including those which may be subsumed within a settlement. The Department must then determine whether such "costs" are "reasonable and necessary" and are otherwise statutorily eligible for reimbursement from the Fund, before granting a reimbursement request. In light of this, the statute simply does not "require" the Department to consider settlements as a whole, or by any other specific method, and certainly does not preclude the Department from looking behind the settlement figure for the purposes of considering the individual costs supporting it, as was done here.

The majority concludes, at least implicitly, that the settlement here was "reasonable" because "[n]either the Department in its fact finding nor the trial judge on review determined the $575,000 was an unreasonable amount to settle the pending property damage litigation. . . ." However, the record here is largely devoid of evidence concerning several of the factors the majority posits should be considered in assessing the reasonableness of settlement. Specifically, the "range of reasonableness of the settlement in light of all the attendant risks of litigation," the "complexity, expense, and likely duration of the litigation," the "recommendations of competent counsel," and "the reaction of the [beneficiaries] to the settlement." Dauphin Deposit Bank Trust Co. v. Hess, 727 A.2d 1076, 1078 (Pa. 1999).

Finally, I do not agree, as the majority states, that "the Department's interpretation of the statute . . . preclud[ed] recovery of settlement costs" in this case. To the contrary, in its decision, the Department specifically considered 7-Eleven's claim that it should review the matter in terms of "whether the settlement amount fell within an `appropriate settlement range' rather than a precise dollar amount that is deemed reasonable." After reviewing all the evidence, including the amount originally sought by Hechinger in its Amended Motion for Judgment, as well as the ultimate settlement amount and several detailed damage estimates submitted by 7-Eleven, the Department chose to value the "reasonable and necessary" costs in terms of the amount it deemed "reasonable and necessary," rather than the amount the parties deemed "reasonable and necessary" by way of their settlement. Nothing in the statute precludes the Department, in its expert discretion, from independently analyzing "reasonable and necessary" costs in this manner.

Thus, because I would find that the statute clearly provides the Department with the authority, the discretion, and the duty to determine the reasonableness and necessity of all recoverable costs, and does not mandate any specific considerations beyond those plainly set forth in the statute, I cannot join the majority in its amendment of the statute by judicial fiat. Instead, I would uphold the circuit court's determination, affirming the Department's decision.

III. Tank Fund Guidelines

I would also find that the Fund's Guidelines comply fully with the charge given the Department by the legislature, and do not "impermissibly restrict recovery [for] property damage." Moreover, I disagree that the Department impermissibly "restrict[ed] recovery of property damage to only those specifically listed in the Guidelines."

As the majority notes, the Guidelines provide as follows, in Section VI(C):

Costs incurred by owners/operators, in compensating third parties for real property damage proximately caused by a release from an owner's/operator's eligible tank, which are eligible for disbursement from the Fund include the following:

1. For temporary damage to real property, the decrease in rental value during the continuance of the injury, and

2. For permanent damage to real property, the lower of (i) the diminution in the value of the real property and fixtures (as determined after completion of corrective action) or (ii) the cost to restore the real property to its condition prior to the injury.

Guidelines VI(C) (emphasis added).

By the majority's own reasoning, these "Guidelines" do not restrict "recovery of property damages to only those specifically listed." Indeed, the Guidelines state that costs incurred that are eligible for reimbursement " include" the items listed. Thus, as stated by the majority and as the plain meaning of the word suggests, the Department "indicated that the specifically mentioned [costs] are not exclusive," Herb's Welding, Inc. v. Gray, 470 U.S. 414, 423 n. 9 (1985), and therefore, do not restrict "recovery of property damages to only those specifically listed in the Guidelines."

Indeed, Section VII of the Guidelines sets forth costs which the legislature and the Department, in its expert discretion and according to its interpretation of its statutory charge, have deemed ineligible third party liability costs. There would be no need for the Department to identify such "ineligible" costs if Section VI, or any other provision in the Guidelines, limited reimbursement to only those specifically listed in the Guidelines.

Further, the fact that the Guidelines do not designate as eligible any and all costs incurred, does not conflict with the charge given to the Department by the legislature. In fact, as stated above, the statute does not entitle a claimant to a recovery for any and all costs incurred in the form of damages, nor does it provide the Department with the discretion to reimburse for any and all costs incurred. Instead, the legislature limited reimbursable costs to those that the Department, in its discretion, finds "reasonable and necessary," and to those not otherwise declared ineligible under the statute. Code § 62.1-44.34:11.

Lastly, it is clear that in reaching its determination in this case, the Department correctly applied the Guidelines, explicitly stating that it considered the costs claimed and whether those costs were "eligible pursuant to the Guidelines."

Thus, because I would find that the Guidelines do not bar the Department's exercise of discretion (beyond the limitations otherwise set forth in the statute) in determining the recoverability of property damage, and because I would find that the Department correctly applied the Guidelines, I would hold that the circuit court did not err in applying the arbitrary and capricious standard in upholding the Department's decision.

IV. Temporary Damages

Finally, I disagree with the majority's conclusion that the hearing officer and the circuit court disregarded 7-Eleven's claim for the carrying costs, lost profits, and lost investment income as encompassed within the settlement.

On appeal, 7-Eleven contends that the Department "and the circuit court erred as a matter of law in denying 7-Eleven's recovery of temporary and permanent damages proximately caused by the contamination." However, the record clearly demonstrates that the hearing officer specifically reviewed all costs claimed by 7-Eleven, including "additional expenses resulting from carrying property on the books; and . . . interest, costs and attorney's fees (of Hechinger)," and explicitly considered whether 7-Eleven was entitled to reimbursement for "permanent, temporary, or both types of damages." Based upon his review of all the evidence, including the damages characterized by 7-Eleven on appeal as "permanent" and "temporary," the hearing officer determined that, because 7-Eleven presented no evidence that the contamination would "attenuate within a known time frame," the appropriate measure of damages would be "the permanent diminution in the value of the property," to be valued as set forth in Packett v. Herbert, 237 Va. 422, 377 S.E.2d 438 (1989). The hearing officer did not conclude, as suggested by the majority, that under Packett he could not award reimbursement for both permanent and temporary damages. Nor did the hearing officer conclude that he could not award reimbursement for both permanent property damage, in terms of diminution in land value, and "intangible property damage costs." Instead, the hearing officer clearly considered all of the evidence pertaining to damages, however characterized by 7-Eleven, and made a determination that only certain of those costs were eligible for reimbursement pursuant to the statute and the Guidelines.

While I have no doubt that the hearing officer's decision could have been more detailed, I am of the opinion that his determination, which was based upon the application of the hearing officer's expert discretion, as an agent of the Department, fell within his specialized competence, and that of the Department. Neither this Court, nor the circuit court should substitute its own independent judgment for that of the Department, as the majority seems to have done here. Instead, we may only reverse the Department decision if it was arbitrary and capricious and without substantial evidence to support it.See Holtzman, 32 Va. App. at 538-39, 529 S.E.2d at 337. Because I would find substantial credible evidence supporting the hearing officer's determinations, and because there is no indication in the record that the hearing officer's determinations on these issues were arbitrary and capricious, I would find no error in the circuit court's decision to uphold the hearing officer's judgment.

For the foregoing reasons, I dissent and would affirm the decision of the circuit court, upholding the award of the Department of Environmental Quality.


ANNUNZIATA, J., dissenting.

I respectfully dissent from the majority opinion. 7-Eleven claims on appeal that the trial court applied the wrong standard of review and that it erroneously affirmed the Department of Environmental Quality's damages analysis. 7-Eleven specifically claims that the Department erroneously: 1) failed to award reimbursement for temporary damages, including lost rental income, carrying costs, lost profits, and lost investment income; 2) failed to properly consider the opinions of qualified experts; 3) failed to apply the "common law factors traditionally used to evaluate the reasonableness and necessity of a settlement", and 4) erroneously conducted a "de novo examination of the evidence" to determine whether its settlement was reasonable and necessary. The claims that 7-Eleven raises involve issues of law and fact and implicate different standards of review on appeal. For the reasons that follow, I would affirm the trial court's judgment in this case.

I. Background

The record makes clear that the Department considered the settlement reached between 7-Eleven and Hechinger, but that it rejected the figure proffered, finding it to be an inaccurate reflection of the reasonable and necessary costs incurred as a result of injury to Hechinger's property. The injury in question was caused by leakage from an underground petroleum tank located on 7-Eleven's property. The Department rejected the settlement figure on two grounds. First, it rejected the settlement amount as neither "reasonable [nor] necessary" because it found the law and the evidence failed to support certain elements of the claim. Second, the Department rejected 7-Eleven's contention that it was required to determine the reasonableness and necessity of the settlement amount by considering "the appropriate settlement range" found in similar, litigated claims and that the Department was, therefore, precluded from considering, de novo, whether the underlying evidence supported 7-Eleven's claim for reimbursement.

II. Standard of Review

Although decisions by administrative agencies regarding matters within their specialized competence are "entitled to special weight in the courts," Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 244, 369 S.E.2d 1, 8 (1988), "when, as here, the question involves an issue of statutory interpretation, `little deference is required to be accorded the agency decision' because the issue falls outside the agency's specialized competence." Sims Wholesale Co. v. Brown-Forman Corp., 251 Va. 398, 404, 468 S.E.2d 905, 908 (1996) (quoting Kenley, 6 Va. App. at 246, 369 S.E.2d at 9). "In sum, pure statutory interpretation is the prerogative of the judiciary." Id. In the case before the Court, the Department's interpretation of Code § 62.1-44.34:11(A)(2), and its determination that certain damages are not recoverable as a matter of law, must, therefore, be reviewed in accordance with the least deferential standard of review. Id. The Department's factual determinations, however, are entitled to great deference. 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.").

III. The Trial Court Did Not Err in Affirming the Agency's Damages Analysis

7-Eleven contends that the trial judge erred in affirming the Department's damage analysis under which it rejected its claim for both permanent and temporary damages, including lost rental income and various carrying costs. In support of its contentions, 7-Eleven relies on the general principle enunciated in Lochaven Co. v. Masters Pools by Schertle, Inc., 233 Va. 537, 337 S.E.2d 534 (1988) that "[t]he measure of damages in a negligence action is that amount necessary to compensate the injured party for the damages proximately caused by the tortious conduct." Id. at 541, 357 S.E.2d at 537. The general principle, albeit applicable, does not necessarily support the conclusion that the particular damages sought are recoverable in their entirety. Numerous, specific principles of law defining appropriate damages in cases involving tortious injury to real property have equal, if not greater, relevance to this Court's resolution of the question. The Department properly accepted these specific principles of law in determining the reasonable costs incurred by 7-Eleven in settling its litigation with Hechinger.

A. The Department Did Not Use An Improper Measure of Damages

Two concerns animated the Department's consideration of 7-Eleven's request for reimbursement of its costs in this case: the avoidance of double recovery and the application of relevant law governing recovery of damages for injury to real property. To determine whether 7-Eleven's claimed damages were reasonable and necessary, the Department discussed and applied the following principles.

The measure of damages for permanent injury to property is the diminution in the market value of the property, viz., the difference between the market value of the property before and after the injury. The Department cited four Virginia cases in support of that proposition:Packett v. Herbert, 237 Va. 422, 377 S.E.2d 438 (1989); Douthat v. Chesapeake Ohio Ry. Co., 182 Va. 811, 30 S.E.2d 578 (1944); Norfolk Western Ry. Co. v. Richmond Cedar Works, 160 Va. 790, 170 S.E. 5 (1933); and Raleigh Court Corp. v. Faucett, 140 Va. 126, 124 S.E. 433 (1924). When damages to real property are deemed to be permanent, temporary damages, including lost rental income, are not recoverable. For this proposition, the Department relied on the holding in Georgia v. City of East Ridge, Tenn., 949 F. Supp. 1571 (N.D. Ga. 1996). Equally relevant to whether both temporary and permanent damages for injuries to real property are recoverable is the proposition that where temporary damages, such as cost of repair, exceed the diminution of market value, damages are limited to the diminution of market value. The Department citedUnited States Steel Corp. v. Benefield, 352 So.2d 892 (Fla. Dist. Ct. App. 1977), in support of this proposition. It also cited the Virginia Supreme Court case, Averett v. Shircliff, 218 Va. 202, 237 S.E.2d 92 (1977), as authority for an analogous principle which it expected to apply in addressing evidence which established that the contamination to the Hechinger property had been "partially cured." That principle states that, where evidence of repair and depreciated value after repairs exists, the proper measure of damages is the lower of 1) the difference in the fair market value of the property before and after the accident, or 2) if the property could be restored to its former condition, the cost of repairs, plus applicable depreciation. Averett, 218 Va. at 207-08, 237 S.E.2d at 95-96. Finally, to address evidence in the case which showed that factors other than contamination were relevant to determining the post-injury value of the subject property, the Department cited the Virginia Supreme Court case of Techdyn Sys. Corp. v. Whittaker Corp., 245 Va. 291, 427 S.E.2d 334 (1993), for the proposition that "where there is evidence of damage from several causes, for a portion of which a defendant cannot be held liable, a plaintiff must present evidence that will show within a reasonable degree of certainty the share of damages for which that defendant is responsible." Id. at 296, 427 S.E.2d at 337.

I note that the Virginia Supreme Court case, Packett v. Herbert, also stands for this proposition.

Applying the least deferential standard of review articulated in Sims Wholesale to the Department's conclusions of law, I would find no error in its reliance on the legal principles it cited. Other authorities cite the same principles as governing. Thompson on Real Property, for example, sets forth the following:

When a plaintiff recovers permanent damages for harm to property, those damages are measured by depreciation in the market value of the property. Those damages are measured by whatever depreciation in the market value of the property has been caused by the nuisance. Loss of rental value may be the appropriate measure of damages, if the property itself is not harmed but its usefulness has been impaired. A plaintiff may not recover permanent damages for both the loss of market value and loss of rental value. If temporary damages are recovered for harm to property, those damages are measured by the loss of the rental value or loss of use value of the property as a result of or during the continuance of the nuisance.

8 Thompson on Real Property § 67.06(a)(2), at 119-20 (David A. Thomas ed. 1994) (footnotes omitted); see also 9 Powell on Real Property § 64.07[3], at 64-42 (Michael Allan Wolf ed., Matthew Bender) ("When the harm caused by a nuisance is only temporary and can be abated, the measure of damages normally is the depreciation in the rental or use value of the affected property. . . . When harm is permanent, damages are measured by the decrease in the fair market value of the property." (footnotes omitted)); 1 Dan B. Dobbs, The Law Of Torts § 57, at 113 (2001) ("Courts are generally reluctant to approve recovery for repairs or restoration when costs exceed the amount by which the land's value has been diminished."); Id. at 115 ("If the defendant's nuisance or trespass continues to cause harm to the plaintiff's interests in land, courts usually begin by classifying the invasion as either permanent (completed) or temporary and continuing. . . . The permanent . . . damages measure is usually the diminished value of the land resulting from the invasion" (footnotes omitted)); 1 Dan B. Dobbs, Law of Remedies § 5.1, at 711 (2d. ed. 1993) ("Quite commonly, . . . in the case of physical harms to the property itself, the measure is the diminished value of the land caused by the trespass" (footnote omitted)); Id. § 5.6(1), at 754 ("If the effects of the nuisance are more or less permanent, the diminution in land value due to the nuisance will be recoverable; if temporary, the diminished rental value during the period of harm."); see also Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1246 (Utah 1998).

Recovery for both permanent and temporary damages in cases involving real property injuries is generally excluded on the ground that the recovery is duplicative. Patrick v. Sharon Steel Corp., 549 F. Supp. 1259, 1265 (N.D.W. Va. 1982) ("the motivating factor behind distinguishing between temporary and permanent damages [is] the prevention of a double recovery for permanent damages"); 58 Am. Jur.2d Nuisances § 276. Generally, diminution in value of the property constitutes the upper limit of recovery. When permanent damages are awarded or temporary damages exceed the value of the property, temporary damages are not appropriate because an award for both would constitute a duplicative recovery. See Beam v. Birmingham Slag Co., 10 So.2d 162, 164 (Ala. 1942); 58 Am. Jur.2d Nuisances § 276; see also Averett, 218 Va. at 207-08, 237 S.E.2d at 95-96.

The Department did not cite Averett for this proposition, but the case appears to imply it.

In my view, 7-Eleven's claim that the Department erroneously denied recovery for both permanent damages and temporary damages, such as rental income and carrying costs, is not supported by the law of damages as set forth in Virginia law and in our sister states. 7-Eleven presents no argument to refute the validity of the principles governing the measure of damages for permanent injuries to real property, save the general principle of law set forth in Lochaven which allows recovery of all proximately caused damages. That general principle, however, does not nullify or subordinate the specific principles upon which the Department relied in determining whether the reimbursement 7-Eleven sought was reasonable and necessary. I would, therefore, hold that the Department applied the correct legal principles to its damages analysis and that the trial court properly affirmed that decision.

B. The Department's Findings of Fact in Determining 7-Eleven's Reasonable Costs Are Supported by Substantial Evidence

Having determined the applicable legal principles, the Department evaluated the evidence presented in support of 7-Eleven's claim in light of those principles. This analysis was fact-based and resulted in factual findings that are entitled to deference by the reviewing court.Holtzman, 32 Va. App. at 539, 529 S.E.2d at 337. The trial court may not substitute its own independent judgment for that of the agency and will only reverse an agency's factual findings if not supported by substantial evidence. Volkswagen of Am., Inc. v. Quillian, 39 Va. App. 35, 49, 569 S.E.2d 744, 751 (2002), rev'd on other grounds sub nom., Volkswagon of America, Inc., v. Smith, 266 Va. 444, 587 S.E.2d 526 (2003). I would find that the trial court did not err in affirming the decision of the Department because it is supported by substantial evidence.

The record discloses that the Department reviewed the settlement figure proffered by 7-Eleven and the evidence supporting it. Based on this review, the Department found that the reimbursement 7-Eleven sought was not reasonable and necessary, and it set the award at $103,117. In reaching this conclusion, the Department first found, as fact, that the injury to the Hechinger property attributable to the leakage of petroleum from an underground tank located on 7-Eleven's property was permanent in nature. Its conclusion was based on the following evidence:

Upon site closure, contamination remained on the Hechinger property. The Regional Office's July 7, 2000 memorandum indicates that it is simply not possible to predict how long it will take natural attention [sic] to return the site to background levels. Southland provided no evidence and no evidence exists in the Agency's records that indicates the remaining contamination will attenuate within a known time frame.

The conclusion that the injuries to the Hechinger property were permanent in nature is supported in the record. Indeed, that finding is undisputed. The Department's conclusion is also consistent with the definitions of permanent and temporary injuries. "Whether contamination by toxic waste is a permanent or continuing injury turns on the nature and extent of the contamination; the crucial test of the permanency of a trespass is whether the trespass can be discontinued or abated." Mangini v. Aerojet-General Corp., 912 P.2d 1220, 1226 (Cal. 1996) (citations and quotations omitted).

Turning then to the task of determining the reasonable and necessary cost for the permanent damage to Hechinger's property, the Department applied the formula set forth in Faucett, Douthat, and Richmond Cedar Works. The formula is based on the difference between the fair market value of the property before and after the injury. See 22 Am. Jur.2dDamages § 405.

The Department determined that the property's fair market pre-injury value was between $903,177 and $938,700. Its finding was based on evidence of the County assessment of the property and the actual price Hechinger paid for the property two years before the pollution report. It specifically rejected Hechinger's 1990 asking price of $1,550,000 for the property as an accurate pre-injury value, finding that it was forty percent higher than the price Hechinger paid for the property less than two years earlier and significantly inflated. For similar reasons it rejected the opinion offered by one of Hechinger's experts, Lawrence A. Salzman, who stated the pre-injury value to be $1,300,000. 7-Eleven's expert, Joseph B. Call, III, opined that the property's pre-injury value was $715,000, a figure substantially below that which the Department considered fairly derived. In short, the Department gave more weight and credence to evidence of the property's assessed value and evidence of its purchase price two years before the contamination occurred in reaching its conclusion that the fair market value of Hechinger's property pre-injury was $903,117. I cannot say that this finding is not supported by substantial evidence.Quillian, 39 Va. App. at 49-50, 569 S.E.2d at 751-52 ("`The reviewing court may reject the agency's findings of fact only if, considering the record as a whole, a reasonable mind necessarily would come to a different conclusion.'" (quoting Kenley, 6 Va. App. at 242, 369 S.E.2d at 7)); see also Jules Hairstylists, Inc. v. Galanes, 1 Va. App. 64, 69, 334 S.E.2d 592, 595 (1985) ("We do not retry the facts before the [agency], nor do we review the weight, preponderance of the evidence, or the credibility of witnesses. If there is evidence or a reasonable inference that can be drawn from the evidence to support the [agency's] finding, they will not be disturbed by this court on appeal.").

To calculate the property's diminution in value the Department also had to determine the property's post-injury fair market value. In doing so, the Department considered the opinions proffered by Hechinger's and 7-Eleven's experts as well as a post-injury offer to purchase the land for $800,000. It rejected the former and credited the latter. It explained its decision to credit the offer of purchase as an accurate measure of the property's fair market post-injury value, noting that use of the post-injury offer to purchase was made by a potential purchaser of the site in July 1996, after the "majority of the clean-up expenses already had been incurred." It concluded:

It is not unreasonable to assume that the buyer was aware of the condition of the parcel and that the current condition was reflected in the offer price. Because the bulk of the clean-up had occurred at that point, using this figure in the diminution of property value calculation would not result in a double recovery to Southland

The Department made its award of $103,117 by calculating the difference between $903,117 and $800,000. Its reasoning follows:

Based on the valuation information provided, a reasonable range for the permanent damages was between $138,700 and 103,117 (i.e., $938,700 or $903,117 minus $800,000). It is not necessary to make an adjustment to reflect partial cure costs, because the $800,000 offer appeared to be from an arms-length buyer and was made at a time when the cure of the property was nearly complete. Additionally, the evidence does not clearly demonstrate that topographical problems at the site affected the offer price. Therefore, the claimant will be given the benefit of the doubt on this issue, and no adjustment will be required to address this alleged cause of reduced property value. For the foregoing reasons, third party claim costs in the amount of $103,117 are approved, as this amount reflects actual market values.

I cannot say that substantial evidence does not support the Department's determinations of the property's value before and after the injury. As such, the Department's conclusions were properly affirmed by the trial court.

In my view, 7-Eleven's contention that the Department erred in rejecting the opinions of post-injury value proffered by 7-Eleven's and Hechinger's experts is without merit, and I would affirm the trial court's decision to affirm the Department's rulings on this issue.

7-Eleven raises three points to support its argument on this issue. It contends that because the experts were "qualified and employed accepted methodologies" in formulating their opinions, the Department's decision was arbitrary and capricious. This argument overlooks the standard of review that governs fact-based determinations by the Department.Quillian, 39 Va. App. at 49, 569 S.E.2d at 751 ("`The sole determination as to factual issues is whether substantial evidence exists in the agency record to support the agency's decision.'" (quoting Kenley, 6 Va. App. at 242, 369 S.E.2d at 7)). It also fails to consider that the Department rejected the experts' opinions because their underlying premises, in part, were not consistent with the law of damages which the Department concluded applied.

As noted above, the Department found the pre-injury valuations given by 7-Eleven's experts were not "credible" in light of the "County's assessment of the property and the amount Hechinger actually paid for the property less than two years before the contamination was discovered." This finding of fact establishing the property's pre-injury value is supported by substantial evidence and may not be rejected unless "`considering the record as a whole, a reasonable mind necessarily would come to a different conclusion.'" Id. at 50, 569 S.E.2d at 751-52 (quoting Kenley, 6 Va. App. at 242, 369 S.E.2d at 7).

The Department's rejection of the experts' appraisals of post-injury fair market valuations was based on both findings of fact and the application of law. The record supports the Department's conclusions.

The record discloses that Salzman provided two evaluations. He first established a market value for the property in the amount of $1,300.000. That figure did not take the property's contamination into account, and was properly rejected by the Department as not relevant to its determination of post-injury damages. In subsequently addressing the value of the property post-contamination, Salzman used an analysis based on estimates of Hechinger's lost investment income, lost rental income, carrying costs, including tax payments and expenses for legal assistance and environmental experts. These elements of temporary damages and an analysis based on them do not comport with the legal measure of damages enunciated by numerous authorities which require a comparison of property's fair market value before and after injury. See supra Part III.A; see also Packett, 237 Va. 422, 377 S.E.2d 438; Douthat, 182 Va. 811, 30 S.E.2d 578; Richmond Cedar Works, 160 Va. 790, 170 S.E. 5; Faucett, 140 Va. 126, 124 S.E. 433; 5 C.M.J., Damages, § 34 (2003) ("The general rule is that the proper measure of damages for injury of a permanent nature to real estate is the difference between its market value immediately before the injury and its market value immediately after the injury." (footnote omitted)). Indeed, there is no authority to support the inclusion of the factors Salzman considered in determining the post-injury fair market value of real property.

The record discloses that Call's opinion was likewise segmented into two. In his report, Call opined that the post-injury market value of the property was $715,000. That figure also failed to take into account the property's contamination and its effect on market value; Call found that the contamination was not relevant to determining the property's value. Instead, he found that the property's market value was adversely impacted by the site's severe topographical constraints. Call's opinion thus did not reflect the diminution in value suffered by the property pre- and post-injury as a result of the contamination. As such, his opinion was properly rejected by the Department. Subsequently, Call was asked to render an opinion on the market value of the property in light of the contamination. In his response, he confined his analysis to that portion of the site that was contaminated, an area of about one acre, or approximately one-tenth of the entire parcel. He concluded that the present value of the damages to that particular portion of the site was $102,000. He based his estimate of damages on the conclusion that this one acre portion of the site "could not be employed for its highest and best use in 1990" and calculated the loss as total. The Department properly rejected Call's opinion to determine damages because his initial opinion did not consider the contamination of the site, and his second opinion did not address the entire site, with all its attendant problems, both topographical and toxic.

7-Eleven argues that Call's second figure, $102,000, nonetheless represents the diminution of market value of the property before and after injury. The record fails to support that conclusion, factually or logically, because it presumes that the total site's fair market value post-injury can be equated with the diminution in value of one segment of that property. Indeed, Call's own opinion belies the conclusion: his first estimate of post-injury fair market value took into consideration the entire tract of land, including the contaminated portion, and he found that the site's value was not diminished by the portion contaminated.

In any event, Call's opinion of damages was not substantially different from the figure the Department ultimately determined was reasonable and necessary. Even assuming that the Department erred in disregarding it, the error was harmless. Freeman v. Commonwealth, 223 Va. 301, 316, 288 S.E.2d 461, 469 (1982).

Finally, the Department rejected the appraisal given by Hechinger's expert, Salzman, because it also "assumed no contamination was present on the property and appeared to conclude that the substantially lower property value was due to [severe] topographical problems."

In summary, the Department concluded that the opinions proffered by 7-Eleven's and Hechinger's experts either failed to provide a fair market value of the property with the contamination factored in, or provided estimates of fair market value based on improper considerations. In my view, the trial court did not err in affirming the Department's exclusion of the experts' opinions in evaluating 7-Eleven's claim for reimbursement under the Fund.

I would also affirm the trial court's decision finding that the Department did not err in excluding recovery for temporary damages, including lost rental income, and carrying costs, such as lost investment income, taxes, and insurance costs. The Department's decision was consistent with settled principles that recovery for both permanent and temporary damages are not recoverable. See supra Part III.A. The Department's decision was also consistent with the legal principle that when temporary damages exceed permanent damages, only the latter are recoverable. See 8 Thompson on Real Property, supra, § 67.06(a)(2), at 119-20; Beam, 10 So.2d at 164; 58 Am. Jur.2d Nuisances § 276; see also Averett, 218 Va. at 207-08, 237 S.E.2d at 95-96 (by implication).

Here, the estimate of lost rental income was in the amount of $710,000 (increasing at more than $140,000 per year). The estimate of lost investment income was $550,000 (increasing at about $32,000 per year). The total carrying costs were estimated to be $283,000 (increasing at a rate of about $37,000 per year). These estimated temporary losses, both separately and in the aggregate, exceeded the permanent diminution in fair market value of the property, which the Department found to be $103,111.

In addition to rejecting the claims for temporary damages as not consistent with the principles regarding the proper measure of damages, the Department also declined to award temporary damages based on certain factual findings that it made. For example, it rejected evidence that Hechinger had lost rental income in the amount of approximately $719,000. That evidence was presented by Hechinger's expert, Lawrence Salzman. He applied a formula using the pre-injury value he gave to the site in the amount of $1,300,000 to determine the rental income the site could have generated. The pre-injury value of $1,300,000 was properly rejected by the Department as unreliable because it failed to take contamination into account. It follows that his estimate of lost rental income is equally unreliable and was properly rejected by the Department.

The Department further determined, as a matter of fact, that the evidentiary premise underlying the claim for temporary damages such as carrying costs, lost profits, lost investment income, and lost rental income was wanting. That premise rested on Salzman's opinion that Hechinger could not sell the property in 1990 because of its contaminated state and that it therefore incurred such temporary damages. The opinion was thus based on the assumption that, had the property not been contaminated, a sale of the property would have been realized. The Department found, however, that Hechinger's failure to sell the property was due to Hechinger's asking price for the property, which it determined was inflated considering other evidence of value in the case. The Department's factual determinations of the reasons behind the property's failure to sell are entitled to deference and must be affirmed when supported by the evidence.

Even if 7-Eleven's carrying costs, lost profits, lost investment income, and lost rental income can be construed as consequential damages, see 2 Dobbs, The Law of Torts, supra, § 379, at 1056, the evidence fails to prove the amounts with reasonable certainty and fails to prove that the additional damages claimed were the proximate result of the tort. Id.

In conclusion, I would find that the Department properly considered and then rejected the settlement reached by 7-Eleven and Hechinger as conclusive evidence of "reasonable and necessary" costs because, as a matter of law, Hechinger was not entitled to some of the damages it claimed and, as a matter of evidence, proof of certain elements of the claim was wanting. I would, therefore, find that the trial court did not err in affirming the Department's application of law regarding the proper measure of damages in this case and its determination, based on the evidence and the relevant legal principles, that $103,117 constituted the reasonable and necessary costs 7-Eleven had incurred as a result of the contamination sustained by the Hechinger property.

IV. The Agency Was Not Required to Apply Common Law Factors And Did Not Err In Conducting An Independent Review of the Evidence To Determine Whether 7-Eleven's Settlement Was Reasonable and Necessary

7-Eleven's final argument in support of its claim that the Department erred in its damage analysis is premised on a claim that the Department failed to apply traditional common law principles governing the evaluation of settlements and that, as a result, it erred in conducting an independent, de novo review of the evidence underlying its claim. I would find no error in the Department's rejection of these contentions and the trial court's affirmance of that decision because, in my view, Code § 62.1-44.34:11(A)(2) does not permit the review 7-Eleven urges.

Even were the factors used to review the reasonableness of settlement to be applied here to determine the reimbursement due 7-Eleven under Code § 62.1-44.34:11(A)(2), an evaluation of what damages were recoverable would generally have to be made. See, e.g., Dauphin Deposit Bank and Trust Co. v. Hess, 727 A.2d 1076, 1078 (Pa. 1999). As discussed in the previous section, 7-Eleven's claim that the settlement figure represented "reasonable and necessary" costs was not supported by the evidence establishing the damages it could have recovered in litigation.

The Code is silent on the question of whether the agency is required to determine the settlement's reasonableness and necessity by applying common law factors of evaluation and by not reviewing the underlying evidence in support of the claim. The sole reference to "settlement" is found in Section VIII of the Fund Guidelines, promulgated by the DEQ in 1998, after the institution of this action but before the Department decided the case. The reference is general in import and, like the statute, lacks definition of the factors to be considered. The Guidelines are explicit about one aspect of the Department's review, however: they clearly put claimants on notice that the Department will not necessarily make reimbursements reflecting the full settlement amount.

The statutory silence regarding whether the Department must apply a traditional common law analysis to determine the reasonableness and necessity of a settlement and that it not consider the underlying evidence in support of the claim, gives rise to an ambiguity that is subject to interpretation by the parties, the Department, and, ultimately, by the court. Virginia Dep't of Labor Industry v. Westmoreland Coal Co., 233 Va. 97, 101, 353 S.E.2d 758, 762 (1987). A statute is open to construction only where the language used requires interpretation because of ambiguity which renders it susceptible of two or more constructions or such doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its meaning. Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985); cf. Winston v. Richmond, 196 Va. 403, 408, 83 S.E.2d 728, 731 (1954) (noting "that which is plain needs no interpretation").

A. The Language of Code § 62.1-44.34:11(A)(2) Does Not Support 7-Eleven's Interpretation By Implication

The principles of law that govern statutory construction are well settled. See, e.g., Grillo v. Montebello Condominium Unit Owners Ass'n, 243 Va. 475, 477, 416 S.E.2d 444, 445 (1992); Shackelford v. Shackelford, 181 Va. 869, 877, 27 S.E.2d 354, 358 (1943); Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934). Where terms are not explicitly found in the statute, they may be implied if necessary.Norfolk Southern Ry. Co. v. Lassiter, 193 Va. 360, 365-66, 68 S.E.2d 641, 645 (1952). "`A statute often speaks as plainly by inference, and by means of the purpose that underlies it, as in any other manner. A policy that is clearly implied is as effective as that which is expressed.'"Id. at 364, 68 S.E.2d at 643 (quoting Leitner v. Citizens Casualty Co., 52 A.2d 687, 690 (N.J. 1947)). However, not all omitted terms may be necessarily implied. "A necessary implication . . . is one that is so strong in its probability that the contrary thereof cannot reasonably be supposed." First Nat'l Bank v. De Berriz, 105 S.E. 900, 901 (W.Va. 1921). Consideration of the object of the statute and the purpose to be accomplished may also clarify the legislative intent. Virginia Electric Power Co. v. Board of County Supervisors, 226 Va. 382, 388, 309 S.E.2d 308, 311 (1983).

7-Eleven argues that the Department's duty to review settlements using common law factors must be read into the statute by implication. It reasons that 1) Code § 62.1-44.34:11(A)(2) permits reimbursement for the payment of judgments that have been awarded as a result of litigating property damages claims and 2) the legislature, therefore, "obviously anticipated that litigation . . . would occur, which means settlements, too, were obviously contemplated." From those premises, 7-Eleven concludes that "the legislature is presumed to intend that the common law as it had developed when the statute was enacted would provide the applicable law for statutory interpretation [regarding the factors to be used in determining whether a settlement is reasonable and necessary]." 7-Eleven reasons that the factors are "inherent" in the evaluation of settlements. Accepting 7-Eleven's reasoning arguendo that such factors are "inherent" in the review of settlements in the context of litigation, it does not follow, without more, that the legislature intended the same analysis be applied in an agency context.

The common law factors that 7-Eleven finds integral to and necessarily implied into the statute are set forth in three cases: Pickett v. Holland America Line-Westours, Inc., 35 P.3d 351 (Wash. 2001); Community Care Centers, Inc. v. Indiana Family and Social Services Admin., 716 N.E.2d 519 (Ct. App. Ind. 1999); and Dauphin Deposit Bank and Trust Co. v. Hess, 727 A.2d 1076 (Pa. 1999). Under the common law, the criteria generally used in assessing the reasonableness of settlement in the context of litigation

include evaluations of (1) the risks of establishing liability and damages, (2) the range of reasonableness of the settlement in light of the best possible recovery, (3) the range of reasonableness of the settlement in light of all the attendant risks of litigation, (4) the complexity, expense and likely duration of the litigation, (5) the stage of the proceedings and the amount of discovery completed, (6) the recommendations of competent counsel, and (7) the reaction of the [beneficiaries] to the settlement.

Dauphin, 727 A.2d at 1078.

The other cases state substantially similar factors. See Pickett, 35 P.3d at 356; Community Care Centers, 716 N.E.2d at 531.

On this record, I cannot conclude that the interpretation 7-Eleven seeks the Court to read into the statute by implication is "so strong in its probability that the contrary thereof cannot reasonably be supposed." I cannot do so on three grounds, each of which supports a contrary proposition: 1) the legislative object and purpose underlying the establishment of administrative agencies militates against such an interpretation; 2) the purported legislative intent to abrogate the fact-finding authority of the agency is not consonant with settled legal principles of review and is not clearly expressed in the statute; and 3) claims for disbursement under the statute would receive disparate treatment depending on how the third-party claim is resolved. I address each ground in turn.

As stated by the majority opinion, one ostensible statutory object and purpose of Code § 62.1-44.34:11(A)(2) is to "provide a prompt and efficient means of abating pollution caused by underground storage tanks and to facilitate payment of compensation to third parties who have suffered . . . property damage caused by release of petroleum from underground storage tanks." However, I believe the question before the Court implicates other objects and purposes that must be considered to properly construe the legislature's intent. Notably, the legislature enacts laws establishing administrative bodies in order to delegate certain authority to them. In adopting such legislation, the legislative body delegates to administrative agencies those tasks which lie within an agency's competence. Virginia Alcoholic Beverage Control Com. v. York Street Inn, Inc., 220 Va. 310, 313, 257 S.E.2d 851, 853 (1979). Absent clear indicia that the legislature intended to delegate to the agency adjudicative responsibilities that are beyond its expertise, I would find that it did not. "Complex problem[s]" should be decided by an administrate agency "in the light of its administrative experience and knowledge." Virginia Elec. Power Co. v. NLRB, 319 U.S. 533, 543 (1943). It cannot be said that the Department's administrative experience, knowledge, expertise and competence extend to the application of the common law factors used to evaluate settlement figures, factors which were developed in the context of litigation in courts of law. Indeed, there has been no showing that such an analysis is within the Department's special competence, nor can any such competence be presumed.

I further note that, even were 7-Eleven's position to be adopted, no evidence relating to the factors relevant to assessing the reasonableness of a settlement, such as the complexity of the case, the range of jury verdicts, and other such facts that 7-Eleven asked be considered, was submitted and there has been no showing that the Agency has the expertise necessary to determine the reasonableness of settlement absent such evidence.

Second, I would find that 7-Eleven's interpretation may not be implied from Code § 62.1-44.34:11(A)(2) because, to do so, would abrogate settled principles of agency review. 7-Eleven contends that the Department is not only required to evaluate a settlement figure based on common law factors used in evaluating the reasonableness of settlements in a litigation context; it further contends that the Department may not look behind the settlement to examine and evaluate, de novo, the evidence underlying such a settlement. 7-Eleven's position is inconsistent with the object of the statute and overlooks the purposes to be accomplished. There is no question that the legislature intended to facilitate the payment of compensation to parties whose property was damaged by the release of petroleum from underground tanks. However, an equally important legislative purpose is reflected in its decision to interpose a state agency in the compensation process and to delegate to that agency the authority to implement it. In delegating such authority to the Department, the legislature expressly defined its role. It authorized the Department to determine whether the reimbursement for costs is reasonable and necessary. In employing such terms as, "reasonable and necessary," the legislature made clear that the authority delegated to the Department is not simply or purely ministerial. "A ministerial act is `one which a person performs in a given state of facts and prescribed manner in obedience to the mandate of legal authority without regard to, or the exercise of, his own judgment upon the propriety of the act being done.'" Richlands Medical Ass'n v. Commonwealth, 230 Va. 384, 386, 337 S.E.2d 737, 739 (1985) (quoting Dovel v. Bertram, 184 Va. 19, 22, 34 S.E.2d 369, 370 (1945)). Rather, under the provisions of Code § 62.1-44.34:11(A)(2), the Department has been vested with the authority to review claims and to exercise discretion and judgment to determine the propriety of the claim before making disbursement. It follows that the exercise of such judgment necessarily requires that the agency review the underlying evidence in support of the claim to determine whether the claims made for disbursement are spurious or real, whether they are reasonable or not. "If nothing could be left to the judgment and discretion of administrative officers, government could not be efficient and the legislation itself would become `either oppressive or inefficient.'" Bell v. Dorey Elec. Co., 248 Va. 378, 379-80, 448 S.E.2d 622, 623 (1994) (quoting Thompson v. Smith, 155 Va. 367, 379, 154 S.E. 579, 584 (1930)). Adopting 7-Eleven's interpretation would lead to the conclusion that, whenever a claim for damages has been made in a court of law, whether it is resolved by a judgment or by a settlement, the Department, in discharging the legislative mandate to determine whether the claimed costs are "reasonable and necessary," has no authority to review the evidence relating to those costs and to determine whether the claim for reimbursement is supported in fact. The legislature has neither expressly nor implicitly declared that the evidence underlying a claim for reimbursement of costs is insulated from agency review simply because the issues were decided (or could have been decided, as in settled cases) in a judicial forum. A sea change in the law of this magnitude could not have been effected sub silentio. See Hughes v. Commonwealth, 39 Va. App. 448, 461-62, 573 S.E.2d 324, 330 (2002).

7-Eleven also argues that, in cases involving a judgment, the Department and, by extension, the agency and the court are likewise precluded from evaluating the underlying evidence to determine whether the claimed reimbursement is reasonable and necessary. Rather, the agency and the court must accept the "liquidation of the underlying claim to judgment" as "establish[ing] beyond debate the reasonable and necessary cost available for reimbursement." I also note that the only instance in which 7-Eleven believes the statute authorizes the Department to evaluate the reasonableness and necessity of the payment made in settling a claim by independently scrutinizing the underlying facts and supporting basis for that payment, is one in which compensation on a third-party claim is made outside the context of litigation. 7-Eleven provides no rationale for this distinction.

Indeed, in a case such as the one before us, questions such as the proper measure of damages and whether the evidence supports the claim would go unreviewed under 7-Eleven's interpretation except for a review of whether the settlement was within the expected range of jury verdicts, and met with other common law criteria for evaluating settlements.

Finally, I note that the result that flows from 7-Eleven's interpretation of the statute is unequal in its treatment of claims. Under its interpretation, claimants that settle their cases are likely to enjoy a windfall recovery that other claimants do not. The settling claimant would be entitled to reimbursement not only for the actual costs that are proved, in fact, to have been incurred as a result of property damage and which are cognizable in law as recoverable, but also for such costs that relate to elements that bear no real relationship to those actual costs, such as the range of verdicts, the complexity and the expected length of litigation, the expertise of counsel. A claimant who presents a claim for reimbursement of a judgment paid would be limited to its evidence of actual damages.

For the foregoing reasons, I would find that 7-Eleven's claim that the Department was required to apply certain common law principles in its review of 7-Eleven's settlement is inconsistent with the legislative object and purpose in enacting Code § 62.1-44.34:11(A)(2) and that the claimed reviewing principle is therefore not "so strong in its probability that the contrary thereof cannot reasonably be supposed."First Nat'l Bank, 105 S.E. at 901. I would therefore not read into the statute by implication a requirement that the Department confine itself to a review of the reasonableness and necessity of a settlement in accordance with common law factors used to evaluate settlements and that it not review, de novo, the evidence to determine whether the claim for costs that the settlement purportedly represents is supported by the evidence and the law.

V. Conclusion

Because I would find the construction of the statute was proper and that substantial evidence supported the Agency's findings of fact, I would affirm the trial court's decision to sustain the agency's decision.