                    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



                                - 3 -
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.


                                  - 5 -
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

                                 - 6 -
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.



                                - 7 -
     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

                                  - 8 -
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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