COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Bumgardner and Lemons 

Argued at Salem, Virginia 

LINK M. SMITH 

 OPINION BY 

v. Record No. 2898-97-3 JUDGE DONALD W. LEMONS 

 DECEMBER 22, 1998 

DEPARTMENT OF MINES, MINERALS AND ENERGY, 

 DIVISION OF MINED LAND RECLAMATION AND 

 G & A COAL COMPANY, INC. 

FROM THE CIRCUIT COURT OF TAZEWELL COUNTY 

Donald R. Mullins, Judge 

 Donald R. Johnson for appellant. 

 (Mark L. Earley, Attorney General; Richard B. 

Zorn, Senior Assistant Attorney General; 

John C. Wilkinson, Assistant Attorney 

General, on brief), for appellee Department 

of Mines, Minerals and Energy, Division of 

Mined Land Reclamation. 

 (Monroe Jamison, on brief), for appellee 

G & A Coal Company, Inc. 

 Link M. Smith appeals the final order of the circuit court 

upholding the decision of the Department of Mines, Minerals and 

Energy denying him replacement of lost residential water 

supplies. Because the trial court committed no error, we affirm. 

 Link M. Smith owns approximately 324 acres of land in Bandy, 

Virginia, most of which is located above an underground coal mine 

operated by G & A Coal Company (G & A) pursuant to a permit it 

acquired in 1984. Smith has a residential water well located on 

his property which he claims has been adversely affected by the 

operation of the mine. 

 Smith has filed four complaints with the Division of Mined 
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Land Reclamation (DMLR), a branch of the Department of Mines, 

Minerals and Energy (DMME). In 1987, his first complaint alleged 

that his water supply was diminished in the well, forcing him to 

replace it. In 1990, he complained of water loss to his 

replacement well. In 1991, Smith complained about the diminished 

water supply and the reopening of ground cracks on his property. 

 In 1993, Smith alleged that he first became aware of pollution 

and deterioration of the replacement well. His fourth complaint, 

filed on August 10, 1993, alleges loss of residential water 

supply. The fourth complaint is the subject of this appeal. 

 In 1992, the United States Congress passed the Energy Policy 

Act of 1992. This Act mandates that companies operating 

underground coal mines replace residential water supplies that 

were polluted or lost as a result of mining activity. See 30 

U.S.C. § 1309(a)(2). This provision applies to any loss that 

results from underground mining after October 24, 1992. Id. In 

July 1993, the General Assembly of Virginia amended the Virginia 

Coal Surface Mining Control and Reclamation Act of 1979 (VCSMCRA) 

to similarly require the replacement of lost residential water 

supplies. See Code § 45.1-258(B). 

 On June 28, 1994, the DMLR issued Technical Report #1562 in 

response to Smith's fourth complaint. The report concluded that 

Smith's water loss complaint in 1993 resulted from mining 

activities conducted prior to October 24, 1992. Finding that 

Code § 45.1-258(B) requires the replacement of water loss only by 
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underground mining activity conducted after October 24, 1992, the 

DMLR concluded that it could not order G & A to replace Smith's 

lost water. 

 On November 30, 1994, an administrative hearing was held on 

Smith's complaint. The hearing officer granted G & A's petition 

to intervene as a party. On March 15, 1995, the hearing officer 

issued an opinion finding that because of the location of the 

first well, "it is unlikely that underground mining activity by 

G & A Coal Co., Inc. has contributed to [Smith's] water losses." 

Further, with respect to the second well, the opinion stated 

"since the mining activities that resulted in these losses of 

water [predated] October 24, 1992, the [DMLR] cannot require 

replacement of the supply." On March 17, 1995, the hearing 

officer's opinion was adopted by the Deputy Director for 

Regulatory Services for the DMME. In the same letter, the Deputy 

Director affirmed the hearing officer's opinion and adopted the 

hearing officer's "Findings of Fact" and "Conclusions of Law." 

By letter dated May 4, 1995, the DMME denied Smith's request for 

reconsideration and review. 

 On May 26, 1995, Smith filed a Notice of Appeal with the 

Circuit Court of Tazewell County. Smith received a letter, dated 

May 31, 1995, from the Hearings Coordinator of the DMLR, listing 

the contents of the administrative record, including the "Formal 

Hearing Transcript and exhibits (11/30/94)." On December 23, 

1996, the circuit court heard argument from Smith and DMLR, as 
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parties, and G & A, as intervenor. By order dated November 6, 

1997, the court found substantial evidence in the record to 

support the DMLR's decision and dismissed Smith's appeal. 

 After the entry of the final order, Smith alleges that he 

discovered that the DMLR had omitted all hearing exhibits from 

the transcript filed with the circuit court. On November 13, 

1997, Smith filed a "Motion for Reconsideration of Judgment." On 

December 1, 1997, Smith filed a "Motion for Reconsideration of 

Judgment and for Order Requiring Completion of Record by Agency." 

 By order dated January 9, 1998, upon Smith's ore tenus motion to 

withdraw the "Motion for Reconsideration of Judgment" and the 

concurrence of the DMLR and G & A, the court ordered the November 

13 motion stricken from the record and denied Smith's December 1 

motion requesting that the allegedly missing exhibits be filed as 

a part of the record, stating: "[f]inding the record complete 

. . . any possible objection to the completeness of the record is 

too late." 

THE RECORD

 The provisions of the Virginia Coal Surface Mining Control 

and Reclamation Act, Code § 45.1-226 et seq., mandate review 

procedures conducted by formal administrative hearings. In 

addition, the Act makes provisions for parties seeking judicial 

review of administrative decisions, and makes all participating 

entities subject to the provisions of the Virginia Administrative 

Process Act (APA) (Code § 9-6.14:1 et seq.). Code § 45.1-251. 
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 Part Two A of the Rules of the Supreme Court of Virginia 

prescribes appeals pursuant to the Administrative Process Act. 

The Rules state: 

 The agency secretary shall prepare and 

certify the record as soon as possible after 

the notice of appeal and transcript or 

statement of testimony is filed and shall, as 

soon as it has been certified by him, 

transmit the record to the clerk of the court 

named in the notice of appeal. . . . The 

agency secretary shall notify all parties in 

writing when the record is transmitted, 

naming the court to which it is 

transmitted. . . . 

 

Rule 2A:3(b). 

 The record on appeal from an agency 

proceeding shall consist of all notices of 

appeal, any application or petition, all 

orders or regulations promulgated in the 

proceeding by the agency, the opinions, the 

transcript or statement of the testimony 

filed by appellant, and all exhibits accepted 

or rejected, together with such other 

material as may be certified by the agency 

secretary to be a part of the record. 

Rule 2A:3(c). 

 At the hearing before the hearing officer held on November 

30, 1994, Smith introduced several exhibits. Smith alleges that 

these exhibits were not contained in the record received by the 

circuit court. Smith argues that whether it was a mere 

oversight, or an intentional exclusion, the agency's failure to 

include the exhibits in the administrative record constituted a 

failure to comply with its duty under Rule 2A:3(b). The agency 

argues that the record received by the circuit court included the 

exhibits and cites the circuit court's hearing transcript, the 
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court’s failure to indicate a lack of familiarity with the 

referenced exhibits during the hearing, and the explicit 

statement in its order that it considered the "exhibits in the 

administrative record" dismissing Smith's appeal. 

 By order dated November 6, 1997, the court found substantial 

evidence to support the DMLR's decision, and dismissed Smith's 

appeal. On November 13, 1997, Smith filed a "Motion for 

Reconsideration of Judgment." On December 1, 1997, Smith filed a 

"Motion for Reconsideration of Judgment and for Order Requiring 

Completion of Record by Agency." On December 3, 1997, a 

telephone conference was held during which Smith's counsel moved 

to withdraw his November 13 motion on the grounds that pursuant 

to Rule 1.1, the court no longer had jurisdiction to vacate, 

modify, or otherwise reconsider the verdict. Neither counsel for 

DMLR nor G & A had any objection. The court granted the motion 

and then considered Smith's December 1 motion. 

 Without specific citation to any particular rule, Smith 

maintains in his December 1 motion that the Rules of the Supreme 

Court require the DMLR, after 21 days from the entry of the final 

order, to file the allegedly missing documents with the trial 

court.1

 Any objection to the status of the record was not timely 

and will not be considered on appeal. Rule 5A:18. 

 1The provisions of Part 5A of the Rules relating to 

completion of the record refer to the transmittal of the record 

from the circuit court to the Court of Appeals. Part 5A does not 

apply to the transmittal of the record from the agency to the 

circuit court. See Rule 2A:3. 
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 It is the agency's responsibility to prepare and certify the 

record to the circuit court. See Rule 2A:3(b),(c). Assuming 

without deciding that the circuit court did not have a complete 

record before it during the hearing, any objection by Smith was 

too late for the trial court to correct the problem and, 

consequently, inadequate to preserve the issue for appeal. Had 

it been established in a timely manner that the entire record 

required By Rule 2A:3(b),(c) was not before the court, failure to 

grant Smith's motion for reconsideration of the trial court's 

ruling would have been an abuse of discretion. The filing of the 

November 13, 1997 motion was within the time the court could act 

to correct the problem. Rule 1:1. But the matter was not placed 

on the docket and brought to the court's attention so it could 

consider the merits of the motion. 

 "[I]t is well established that the purpose of Rule 5A:18 is 

to require a party to raise an issue in a timely fashion before 

the trial judge so the court has opportunity to address the issue 

and prevent unnecessary appeals." White v. Commonwealth, 21 Va. 

App. 710, 720, 467 S.E.2d 297, 302 (1996). Here, the matter was 

not placed before the judge in a timely manner, giving the court 

the opportunity to address the merits of the issue. To compound 

the omission, the November 13, 1997 motion was withdrawn by 

Smith, thereby removing it from consideration by the trial court. 

 Smith's December 1, 1997 motion was filed more than 21 days 

after the final order was entered. The court had no power to 
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entertain that motion. Consequently, the issue of the 

completeness of the record before the trial judge was not 

preserved for appeal. Rule 5A:18. 

SUBSTANTIAL EVIDENCE

 In reviewing an agency decision, "[t]he scope of court 

review of a litigated issue under the APA is limited to 

determination [of] whether there was substantial evidence in the 

agency record to support the decision." State Board of Health v. 

Godfrey, 223 Va. 423, 433, 290 S.E.2d 875, 880 (1982); see 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, 125 (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. (citing B. Mezines, Administrative Law § 51.01 

(1981)). The burden of proof rests upon the party challenging 

the agency determination to show that there was not substantial 

evidence in the record to support it. See Code § 9-6.14:17. 

 The circuit court found substantial evidence in the record 

for the DMME to uphold the hearing officer's findings that 

Smith's water losses were either unrelated to G & A's mining 

activities, or that the mining activities which caused the loss 

took place prior to October 24, 1992. Smith argues that the 

hearing officer's conclusions were not supported by substantial 
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evidence and that pursuant to Code § 45.1-258, he is entitled to 

have his water loss replaced. 

 At the hearing before the hearing officer, the DMLR 

introduced Technical Report (TR) #1562 that had been issued by 

the DMLR following the filing of Smith's fourth complaint. The 

report analyzed information provided by Smith, as well as 

"several previous DMLR Technical Reports . . . DMLR permit data, 

company mine maps, and Division of Mines' maps . . . ." The 

Report determined, 

 [i]t is likely that underground mining by 

G & A . . . caused some damage to some local 

water-bearing zones. . . . However, the water 

loss complaint regarding [the] Smith

[property] is unsubstantiated. . . . Also, 

[Smith's] domestic well is located 

approximately 600 feet updip from the mine 

works, outside the area of influence. 

(Emphasis added). The Report stated further, 

 [t]he proximity of mining, in terms of 

distance and time, is critical in determining 

the effects of underground mining. The 

[area] being deep mined by G & A . . . in the 

area of the complaint . . . was conducted 

closest to the well in 1988 and the nearest 

pillar extraction in 1989. Since that time 

mining operations have continued away from 

the complainant's residence. . . . Because 

of the location of [Smith's] well . . . it is 

unlikely that his well and associated 

water-bearing zones have been impacted. 

(Emphasis added). 

 The Report concluded, "[b]ased on the information examined 

during the technical investigation, it is unlikely that 

underground mining by [G & A] has contributed to water losses in 
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[other springs,] [h]owever, since the mining activities that 

resulted in these losses of water occurred before October 24, 

1992, the [DMLR] cannot require replacement of the supply." 

 Other evidence included testimony by Jan Zentmeyer and 

Anthony S. Scales, both geologists employed with the DMME. 

Zentmeyer testified that she had investigated Smith's earlier 

complaints and that she had determined that wells and springs 

which Smith complained had been affected by G & A's mining 

operations were too far away to have been impacted. Scales 

testified that although he had not written TR #1562, he was 

familiar with Smith's case and the technical reports related to 

it. Scales testified that Smith's reliance on another case was 

misplaced.2

 On behalf of the appellant, geologist Charles Barlett 

testified that water loss suffered by Smith was due to mining 

that took place after October 24, 1992. In evaluating the 

testimony of the experts, the hearing officer resolved the 

conflict in favor of Scales' testimony. 

 The hearing officer stated, "[t]he division's conclusion 

that G & A's mining did not cause material damage to the 

 2Smith attempted to rely on an unrelated matter, referred to 

as the "Nelson" report at the hearing. Scales testified that 

Smith's attempt to rely on the Nelson report was mistaken, 

because although in "Nelson" the hydrology had been adversely 

affected, it was a "local impact" which was not related to 

Smith's well. Additionally, the mining activities that caused 

the water loss on the Nelson property occurred before October 24, 

1992; consequently, it was not compensable under Code 

§ 45.1-258(B). 
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hydrological balance outside the permit area is valid. . . . The 

evidence at the hearing supported the view that there was not 

continuous fracture flow zone." In evaluating all evidence 

introduced at the hearing, the hearing officer determined, 

"[t]here has been no significant adverse impact on the 

hydrological balance in the area in question." The hearing 

officer concluded further that Smith's water loss was either 

unrelated to underground mining or was caused by mining 

operations that occurred before October 24, 1992. 

 In addition, the hearing officer's opinion stated that G & A 

obtained its permit to conduct mining operations in 1984. 

Smith's "replacement" well, the subject of this appeal, was 

drilled in 1987. Code § 45.1-258(B) requires the replacement of 

water lost "from a well or spring in existence prior to the 

application for a surface coal mining and reclamation permit 

. . . resulting from underground coal mining operations." 

Therefore, even if mining operations of G & A after October 24, 

1992 caused water loss, because Smith's replacement well was 

drilled three years after G & A obtained its permit, the loss is 

not covered under the statute. Code § 45.1-258(B); 4 VAC 

§ 25-130-817.41(j). 

 Smith argues that the DMLR's decision was "arbitrary" and 

that it acted outside the scope of its authority in this case. 

There has been no showing that the DMLR acted in an arbitrary 

manner, nor that it acted outside the scope of its authority in 
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rendering the Technical Report which determined that Smith's 

alleged water losses were not compensable. Smith has also failed 

to show that a reasonable mind would necessarily disagree with 

these findings. Because we review the decision of an agency with 

deference to its findings of fact, where substantial evidence in 

the record exists to support the agency's conclusions, we may not 

substitute our own judgment for that of the agency. 

Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 242, 369 S.E.2d 

1, 7-8 (1988). We hold that substantial evidence was introduced 

to support the hearing officer’s conclusion that the DMLR 

properly refused to order the replacement of Smith's water 

losses. The circuit court did not err in its affirmation of the 

agency decision. 

CONCLUSION

 Because substantial evidence in the agency record supports 

the decision that the DMLR was not required to order G & A to 

replace Smith's lost residential water supplies, the trial 

court’s order upholding the agency's determination is affirmed. 

Smith's additional "Request for Writ Requiring Completion of 

Record by Agency" is denied. 

 Affirmed.