COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Elder
Argued at Salem, Virginia
CONSOLIDATION COAL COMPANY
OPINION BY
v. Record No. 0570-00-3 JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 21, 2000
DEPARTMENT OF MINES, MINERALS
AND ENERGY, DIVISION OF MINED
LAND RECLAMATION AND
GRADY HORN AND ELLA HORN, INTERVENORS
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Keary R. Williams, Judge
Monroe Jamison for appellant.
John C. Wilkinson, Assistant Attorney General
(Mark L. Earley, Attorney General; Richard B.
Zorn, Senior Assistant Attorney General, on
brief), for appellee Department of Mines,
Minerals and Energy, Division of Mined Land
Reclamation.
No brief or argument for appellees Grady
Horn and Ella Horn, Intervenors.
Consolidation Coal Company (CCC) appeals a judgment
affirming issuance by the Department of Mines, Minerals and
Energy (DMME), Division of Mined Land Reclamation (DMLR), of a
subsidence order requiring CCC to repair, replace or compensate
damage to structures caused by its underground mining. CCC
contends: (1) that the agency's finding that subsidence
resulting from CCC's operation caused the subject structural
damage is not supported by substantial evidence in the record,
and (2) that the agency's hearing officer impermissibly relied
on matters outside of the record by assuming that an agency
employee was an expert on subsidence damage. We find no error
and affirm the judgment of the trial court.
I. BACKGROUND
CCC conducts underground mining operations in Buchanan
County, Virginia, pursuant to a DMME permit it acquired in 1995.
The Horns and the Comptons own homes located above these
operations. In 1996, the Horns filed a complaint alleging
subsidence damage to their home and yard. While investigating
the Horns' complaint, the agency's inspector was notified that
the Comptons suspected subsidence damage to their home as well.
The inspector investigated and reported on both claims.
In April, 1997, the DMLR issued Technical Report #1867,
which concluded that underground mining operations by CCC caused
the subsidence that damaged both the Horn and Compton homes. An
October, 1997, addendum confirmed the report's initial
conclusion that subsidence resulting from CCC's Buchanan No. 1
underground mine caused structural damage to the Horn and
Compton homes. Pursuant to Virginia Coal Surface Mining
Reclamation Regulations, DMLR issued a subsidence order
requiring CCC to repair, replace or compensate the Horns and
Comptons for damage caused by CCC's underground mining.
On March 12, 1998, upon CCC's request, DMLR conducted an
administrative hearing, allowing the Horns and Comptons to
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intervene. On June 18, 1998, after receiving evidence and
memoranda of law, the hearing officer issued an opinion
concluding that DMLR "properly issued the subsidence order."
Based on the evidence presented, including the testimony of
DMLR's Chief Engineer, the hearing officer concluded that
"[u]nderground mining by [CCC's] Buchanan No. 1 mine caused
structural damage to the residences of the Horns and Comptons."
On June 22, 1998, the deputy director of DMME adopted the
hearing officer's "Findings of Facts" and "Conclusions of Law"
as the agency's final decision and affirmed DMLR's issuance of
the subsidence order. CCC requested review. On September 11,
1998, the deputy director, after hearing oral and written
argument by CCC, found no error and affirmed the hearing
officer's opinion.
On November 9, 1998, CCC filed in the trial court a
petition for appeal. The trial court denied CCC's petition but
suspended DMLR's decision pending remand to the hearing officer
for further explanation of his findings. On February 14, 2000,
upon review of the hearing officer's findings and further
explanation, the trial court affirmed DMLR's decision and
entered an order dismissing CCC's appeal. CCC contends that the
evidence was insufficient to support the hearing officer's
conclusion that subsidence caused the damage to the Horn and
Compton homes and that the hearing officer impermissibly relied
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upon matters outside the record by assuming that an agency
employee was an expert on subsidence damage.
II. SUBSTANTIAL EVIDENCE
In reviewing an agency decision, "[t]he scope of court
review of a litigated issue under the [Administrative Process
Act (APA)] is limited to determination [of] whether there was
substantial evidence in the agency record to support the
decision." State Bd. of Health v. Godfrey, 223 Va. 423, 433,
290 S.E.2d 875, 880 (1982) (citing Code § 9-6.14:17). The
substantial evidence standard is "designed to give great
stability and finality to the fact-findings of an administrative
agency." Virginia Real Estate Comm'n v. Bias, 226 Va. 264, 269,
308 S.E.2d 123, 135 (1983). A trial court may reject the
findings of fact "'only if, considering the record as a whole, a
reasonable mind would necessarily come to a different
conclusion.'" Id. (quoting B. Mezines, Administrative Law
§ 51.01 (1981)). The burden of proof rests upon the party
challenging an agency decision to show that the record lacks
substantial evidence to support the decision. See Code
§ 9-6.14:17.
The trial court found substantial evidence in the record
supporting the deputy director's affirmance of the hearing
officer's findings that CCC's underground mining caused
subsidence damage to the Horn and Compton homes. The record
supports that determination.
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DMLR introduced before the hearing officer Technical Report
#1867 that had been issued by the DMLR upon investigation of the
Horns' complaint. This report analyzed information from the
Horns and the Comptons, geologic maps for the Keen Mountain
quadrangle, CCC's maps on all known mining near the homes, and
information gained from the technical field investigation
conducted by Robert Stimpson, who visited the homes and took
photographs of the damage. DMLR determined that CCC completed
its longwall extraction mining closest to the Horn residence on
December 31, 1995. Structural damage to the Horn residence
appeared in the spring and summer of 1996. CCC completed its
longwall extraction mining closest to the Compton residence on
May 31, 1995. Structural damage to the Compton residence
appeared in the spring and fall of 1996. In discussing the Horn
residence, the report stated, "[f]or the longwall completed May
31, 1995 . . . the draw angle is 24.4 degrees . . . . For the
longwall completed December 31, 1995 . . . the draw angle is
19.1 degrees." 1
In discussing the Compton residence, the report stated,
"[f]or the longwall completed May 31, 1995 . . . the draw angle
1
The draw angle is the angle from vertical defined from the
edge of mining to the point on the surface where subsidence
becomes negligible. As used in this discussion, the term refers
to the angle from vertical from the edge of mining to the
subject damaged.
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calculates as 22 degrees . . . . For the longwall completed
December 31, 1995 . . . the draw angle is 24 degrees."
The report further determined that, "[t]he draw angle can
be affected by many variables such as lithhology, Geologic
structures, and changes in longwall panel designs."
The report concluded that, "[b]ased on information examined
during the technical investigation, there is evidence that
underground mining operations conducted by [CCC] damaged the
[Horn and Compton] residences."
CCC requested an informal hearing to challenge the findings
of Technical Report #1867. Proposing various models, it argued
that damage outside a draw angle of 15 degrees could not be
attributed to its mine. Following that hearing, an addendum was
filed stating, "[t]he Division feels that the 15 degree draw
angle is not absolute [and] [a]t the angles calculated in the
original report, the amount of settlement is expected to be
slight and damages mostly cosmetic."
The addendum concluded, "[t]he original investigation
documented some damages that are typical of subsidence, the
damages occurred a short time after mining, and the draw angle
is affected by several variables. For these reasons it is felt
that subsidence occurred under the complaint areas and the
original conclusion is valid."
Other evidence presented to the hearing officer included
testimony by Lester Vincent, DMLR's Chief Engineer, who had over
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twenty years experience as a licensed professional engineer in
the fields of mining and environmental engineering. Mr. Vincent
testified that he had reviewed the agency's angle of draw
analysis, which was the basis for the subsidence order. He
explained that modeling methods give only a predicted angle of
subsidence and that actual subsidence events can be affected by
multiple variables, which could account for the extended angles
occurring in this case.
Contrary to CCC's assertions that DMLR presented no
evidence of the existence of such variables, Mr. Vincent
testified that core hole samples taken by DMLR near the
residences showed a five percent to six percent variability in
hard/soft rock ratio. He testified that these variables could
extend a predicted angle of draw by one or two degrees.
Called by CCC, Vincent Scovazzo, a geologist, mining
engineer, expert in rock mechanics, and Ph.D. candidate in soil
and foundation engineering, testified that the damages at the
Horn and Compton homes were not consistent with damages caused
by subsidence. Mr. Scovazzo determined in a prior study that
the angle of draw for CCC's mine was, at a maximum, 11.7
degrees. He admitted, however, that this angle of draw was
based on a model not recognized by the Office of Surface Mining
and Reclamation and that several other acceptable models are in
use.
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The hearing officer recognized that "this [was] a very
close case from the evidence presented." He weighed the
testimony, determined the credibility of the witnesses and
resolved the conflict in favor of the DMLR. The record supports
this ruling. CCC has failed to show that a reasonable mind
would necessarily disagree with the hearing officer's findings.
See Bias, 226 Va. at 266, 308 S.E.2d at 125. Because the courts
review the decision of an agency with deference to its findings
of fact, where substantial evidence in the record supports the
agency's factual determinations, we will not substitute our own
judgment for that of the agency. See Johnston-Willis, Ltd. v.
Kenley, 6 Va. App. 231, 242, 369 S.E.2d 1, 7-8 (1988). Thus,
because substantial evidence supported the hearing officer's
conclusion, the trial court did not err in affirming the agency
decision.
III. MATTERS OUTSIDE OF THE RECORD
CCC next contends that the hearing officer impermissibly
relied on matters outside of the record by assuming that an
agency employee was an expert on subsidence damage. Because CCC
failed to preserve this argument, this challenge is barred upon
appeal. See Rule 5A:18.
CCC did not object to the presentation by the DMLR or to
the introduction of Technical Report #1867 or its addendum.
"[A]n appellant, under the provisions of the APA, may not raise
issues on appeal from an administrative agency to the circuit
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court that it did not submit to the agency for the agency's
consideration." Pence Holdings, Inc. v. Auto Center, Inc., 19
Va. App. 703, 707, 454 S.E.2d 732, 734 (1995). Having failed to
raise this issue before the administrative agency, CCC is
precluded from raising it on appeal. Moreover, the record
reflects no reason to invoke the good cause or ends of justice
exceptions to Rule 5A:18.
Because substantial evidence in the record supports the
hearing officer's conclusion that the agency proved subsidence
caused the damage to the Horn and Compton homes, the trial
court's order upholding that agency's determination is affirmed.
Affirmed.
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